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Full text of "The casuist; a collection of cases in moral and pastoral theology"

■■l - 







The Rev. Thomas J.Glyxm 



Digitized by the Internet Archive 

in 2010 with funding from 

Lyrasis IVIembers and Sloan Foundation 



http://www.archive.org/details/casuistcollectio02unse 



THE CASUIST 

A Collection of Cases in 

Moral and Pastoral 

Theology 




Volume II 



New York 

Joaepk F. W^agner 

1908 



t-^H-^ OX 1 152 

V.2- 



-Q-^^^' ^ -^ 



-T"^ 



^ifiil &btitat 

REMIGIUS LAFORT, S. T. L. 

Censor Librorum 

Smprimatur 

*JOHN M. FARLEY, D. D. 

Archbishop of New York 



New York, October 2, 1908 



Copyright, 1908, by Joseph F. Wagner, New York 



PREFACE 



THE generous approval bestowed upon 
The Casuist when it first appeared, two 
years ago, encourages us to continue the series. 
The present volume, like its predecessor, 
contains many original Cases that appeared in 
The Homiletic Monthly. To them have 
been added Cases of particular interest, selected 
from recent periodical literature, and to these 
Cases their authors' names have been appended. 



^v\e. 



,0^93A \O^0^1) 



I. 

II. 

III. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XL 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIII. 



XXIV. 

XXV. 

XXVI. 

XXVII. 

XXVIII. 

XXIX. 

XXX. 

XXXI. 

XXXII. 
XXXIII. 
XXXIV. 

XXXV. 
XXXVI. 

XXXVII. 

XXXVIII. 



CONTENTS 

PAGE 

Impedimentian Criininis 7 

The Case of a Catholic Lawyer ii 

Impcd'nnentnm Liga»iinis i6 

Plenary Indulgence 21 

Impediment of Spiritual Relationship 24 

A Cleric in Minor Orders Acts as Subdeacon 29 

Cremation 33 

Secret Societies 38 

The Seal of Confession 44 

Anticipating the Office 49 

Disparitas Cidtus 53 

A Case of the Impediment of Consanguinity 58 

A Case of Restitution 62 

A Will Case 65 

Liability for Damage Done by One's Animal 69 

Secret Compensation 75 

Extreme Unction 81 

Concerning a Case of Conscience 86 

Washing the Church Linens 96 

A Marriage Case Under the New Decree 100 

A Case of Restitution 108 

Absolving Penitents Without Admonition 112 

Concerning the Excommunication Incurred by Those Who 
Injure the Rulers of the Church, Either in Body, in 

Their Liberty, or in Their Dignity 117 

The Desecration of Altars 121 

Are Informal Betrothals Binding in Conscience? 125 

Delegation in Assisting at Betrothals 128 

Ne Temere and Catholics of the Oriental Rite 129 

Marriages Between Latin and Oriental Catholics, or of 

Cathohcs with Schismatics (Protestants) 130 

Practical Marriage Cases Under the New Decree 133 

Mixed Marriages Under the New Decree 139 

The Validity of Marriages Among Non-Catholics of the 

Same Denomination 144 

Marriage in Danger of Death 149 

Marriage in Cases of Emergency 155 

Arson and Restitution 158 

Marriage by Compulsion 163 

Nullity of a Marriage Owing to Non-Fulfilment of an Im- 
posed Condition 166 

Administration of the Last Sacraments to Children over the 

Age of Six in Danger of Death 169 

The Administration of the Last Sacraments (Incl. Viati- 
cum) to Dangerously Sick Children Under Six Years 

of Age .,,,,..,. 173 



CONTENTS 



PAGE 

XXXIX. Nullity of Marriage Because of Antecedent Insanity 177 

XL. A Railway Disaster Caused by Mischief 179 

XLI. The Age for Confirmation 181 

XLII. Restitution Owing to the Purchase of Stolen Goods 183 

XLIII. Furnishing of Non-Catholic Churches 185 

XLIV. The Extent of Obedientia Canonica 188 

XLV. Pilferings of Provisions: A Case of Restitution 192 

XLVI. A Case of Restitution 195 

XLVII. Absolution of an Unconscious Person 197 

XLVIII. Baptism of Illegitimate Children 205 

XLIX. Pastoral Prudence 207 

L. Invalid Sponsorship 210 

LI. Telepathic Phenomena 212 

LII. The Jurisdiction to Hear Confession 219 

LIII. A Musician's Co-operation by Playing in Protestant 

Churches and at Dances 225 

LIV. Forgetting to Give Absolution 228 

LV. Simple Vows and Reserved Cases 231 

LVI. Admission to Holy Orders 236 

LVII. Administration of the Holy Viaticum to One Unconscious 

from a Paralytic Stroke 241 

LVIII. Conditional Baptisms 248 

LIX. Consecration Outside of Holy Mass 252 

LX. An Unbaptized Marriage Candidate in the Confessional 253 

LXI. An Consecratum Sit Ciborium Ex Oblivione Extra Cor- 

porale Relictum 256 

LXII. The Clergyman's Demeanor 263 

LXIII. How Can Men be Induced to Frequent Communion? 265 

LXIV. Celebratio and Binatio, after Breaking the Fast 268 

LXV. Application of Probabilism 272 

LXVI. Do Christians Become Martyrs by Dying in the Voluntary 

Service of Plague-Stricken Patients ? 278 

LXVII. The Reconciliatio Ecclesiae Subjectively Prescribed, Al- 
though Objectively not Necessary 281 

LXVIII. Children's Confessions 283 

LXIX. Is it Permissible to Grant Absolution to a Dying Heretic?. 290 

LXX. Or do Sepeliendi Parvulos — Adultos 294 

LXXI. Two Cases of Restitution 299 

LXXII. Members of Religious Orders and Personal Property 303 

LXXIII. Repetition of Extreme Unction During the Same Illness... 306 

LXXIV. The Impediment of Clandestinity , . , , , , , . , 310 



THE CASUIST 



New Casus Conscientiae of General Import, Discussed and Solved 
Vol. II 



I. IMPEDIMENTUM CRIMINIS 

Mr. B., a baptized non-Catholic, was validly married to a baptized 
lady, also a non-Catholic. As far as can be learned the marriage 
was in every respect a valid though an unhappy one. For a time 
they lived together, but owing to a disparity of temperament, to- 
gether with other causes, they finally drifted apart. Some years 
after this, when Mrs. B. had fallen into a decline, Mr. B. became 
acquainted with a Catholic woman, who knew that he had a lawful 
wife living, but under a promise that he would marry her as soon 
as his lawful wife should die, she consented to live with him as 
man and wife. After cohabiting thus for a number of years, Mrs. 
B., the lawful wife, dies. The Catholic woman then accompanies Mr. 
B. to a Catholic priest and desires him to perform the marriage cer- 
emony for them. She explains to him the origin and reasons of 
her relations with Mr. B., that she was never married to him, be- 
cause his first wife was living, but still had consented to live with 
him because he promised to marry her on the death of his wife. It 
is quite evident that the Catholic woman knows nothing about the 



8 THE CASUIST.— VOL. II 

impedimentum criminis, much less the non-Catholic Mr. B. There 
exists a bona Ude ignorance on the part of both concerning any such 
impediment. Did this ignorance exempt them from contracting 
this particular impediment? I am aware that ignorance does not 
excuse one from incurring the other impediments to marriage, but 
as there is some controversy about this particular impedimentum 
criminis, what ought a priest to do, practically, in a case like this? 
The parties have no children, but are looked upon by the public as 
lawful husband and wife and it would be a hardship to separate 
them. 

Answer: If possible get a dispensation super impedimento crim- 
inis adulterii and marry them. It is not certain that a dispensation 
is necessary, because it is not certain whether, on account of their 
ignorance of this particular impediment, they contracted it or not. 

The controversy about this particular impediment is famous in 
theology. This impediment first appears in the Corpus Juris, in the 
IV book of the Decretals of Pope Gregory IX, A.D. 1236. Under 
title 7th, ch. 8, we read: 

"Si quis uxore vivente Ude data promisit aliam se ducturum, 
vel cum ipsa de facto contraxit, si nee ante nee post {legitima ejus 
superstite) cognovit eandem : quamvis utrique ipsorum pro eo, quod 
in hoc graviter deliquerint, sit poenitentia injungenda; non est tamen 
matrimonium, quod cum ea contraxit, post uxoris obitum dirimen- 
dum. Ceterum tolerari non debet si prius vel postea dum vixerit 
uxor ipsius, illam adulterio polluisset." 

The reason for this impediment at this time seems to have been 
the relaxation of the rigor of the ancient penitential discipline. 
Under the ancient discipline, those guilty of adultery under a 
promise of marriage, could not get married at all, neither with the 
accomplice, nor with any one else. But when this discipline was 



IMPEDIMENTUM CRIMINIS. 9 

relaxed, there arose the need of some such law as the impedimentum 
criminis to safeguard society from a particular kind of sin. 

Now the question arises: what was the primary object of the 
Pope in creating this impediment? Did he wish it principally to 
act as a punishment for those who committed adultery with a 
promise of marriage? Or did he create it, because of the natural 
indecency there would be in allowing such persons to marry? On 
this question hinges the whole controversy as to whether ignor- 
ance excuses from contracting this impediment. If the primary 
purpose of the impediment was to punish those who committed 
this crime by invalidating their subsequent marriage, then ignorance 
of the existence of the impediment would excuse one from incurring 
it, because where it was not known, it could not act as a deterrent 
and therefore fails of its principal object. But if the first purpose 
of the impediment was not to punish the delinquents, but to forbid 
unions that were wholly against all sense of Christian decency, then, 
of course, ignorance did not save one from the disability of the im- 
pediment, any more than that ignorance would excuse one from 
incurring the impediment of consanguinity or any other of the 
diriment impediments to marriage. This is precisely where the theo- 
logians and canonists divide. They can not agree as to the primary 
nature of the impediment of crime. Some authors of eminent name 
like Ballerini, D'Annibale, Navarrus, etc., etc., claim that this im- 
pediment was intended primarily as a punishment and a deterrent, 
and therefore that ignorance of its existence exempts from it. Others 
of equal fame as theologians and canonists, like Schmalzgruber, 
Reiffenstuhl, Sporer, Diana, etc., maintain that ignorance does not 
exempt from it, because its first purpose was not to punish the de- 
linquents, but to forbid marriages that shocked the Christian sense 
of decency. 



jQ THE CASUIST.— VOL. II 

When doctors disagree, who shall decide? 

Berardi, who is a very practical man, and is held in high esteem 
in Rome, has this to say on the subject: 

"De probabilitate itaque prions sententiae (ignorance excuses) 
valde dubito; et censeo quod in praxi, sive impedimentum fuerit cog- 
nitum, sive non, dispensatio peti debeat." (Praxis Confess, n. 840.) 

Lehmkuhl (n. 770) holds that the primary object of the impedi- 
ment is the punishment of the delinquents, and that if they are 
already married, although invalidly, still to force them to separate 
would be a "poena gravissima et extraordinaria," and continues : 
"Quare, saltern post contractum matrimonium, omnino pro probabili 
haberi debet sententia docens, ignorantes hanc poenam non in- 
currere . . .probabile habeo practice, impedimentum non adesse 
dummodo neuter complex legem ecclesiastic am sciverit: licet sua- 
deam, maxime ante nuptias, ut petatur dispensatio." (1. c.) 

Hence we conclude that a dispensation should be procured, super 
impedimenta criminis adulterii, before performing the marriage 
ceremony for Mr. B. and the Catholic woman. If for any reason it 
be impossible to get the dispensation, the marriage may be safely 
performed, since both were ignorant of the impediment and more 
than likely therefore did not incur it. 



II. THE CASE OF A CATHOLIC LAWYER 

Titius is a conscientious Catholic and a lawyer of considerable 
ability. In the practice of his profession, he is often called upon to 
defend persons who are being prosecuted in the courts for some 
crime. Now it sometimes happens that Titius knows, even before the 
case comes to trial, that his client is guilty and that he deserves to be 
punished; nevertheless Titius accepts the conduct of the case, be- 
cause he has a special aptitude for such cases, and because he re- 
ceives larger fees for them, than for the conduct of civil cases. 

But on the other hand, he has serious scruples about defending 
such persons, because he thinks it is against the best interests of 
the community, tending to breed contempt for the law, and afford- 
ing a more or less sure escape from the consequences of its trans- 
gression. 

Question. How is he to be advised ? 

Answer. "In the interests of the proper administration of justice," 
says William Lecky, "it is of the utmost importance that every 
cause, however defective, and every criminal, however bad, should 
be fully defended, and it is therefore indispensable that there should 
be a class of men entrusted with this duty. It is the business of the 
judge and of the jury to decide on the merits of the case, but in 
order that they should discharge this function it is necessary that 
the arguments on both sides should be laid before them in the strong- 
est form. The clear interest of society requires this, and a standard 
of professional honor and etiquette is formed for the purpose of 
regulating the action of the advocate. Misstatements of facts or of 
law ; misquotations of documents ; strong expressions of personal 
opinion, and some other devices by which verdicts may be won, are 
condemned; there are cases which an honorable lawyer will not 

II 



,2 THE CASUIST.— VOL. II 

accept, and there are cases in which, in the course of a trial, he will 
find it his duty to throw up his brief." 

It can not be denied that the profession of an advocate is fraught 
with many moral dangers. It is more difficult and more dangerous 
than that of either judge or jury. Dr. Arnold thought that it led 
inevitably to moral perversion, involving as it does the indiscrimi- 
nate defense of right and wrong, and in many cases the known sup- 
pression of the truth. It is said that on the feast of St. Yves, a 
saint of Brittany and a lawyer, that the people chant: Advocatus et 
non latro — Res miranda populo. Indeed, it was this aspect of the 
calling, that drove St. Liguori from the law to the Church. Volumes 
have been written, both by non-Catholics as well as Catholics, on the 
duties and obligations of advocates, some allowing him a large 
measure of freedom in the conduct of civil and criminal cases, and 
others restricting him to cases that he believes to be just. 

Without entering into a discussion of the merits of these several 
views, as held by these authors, many of whom are men of great 
ability and high character, we shall confine ourselves to a short 
statement of the accepted doctrine of Catholic moralists, regarding 
the duties and practices of advocates. 

First of all, moral theology lays down the general principle that 
it is not lawful for a lawyer to accept any cases not founded in 
justice, nor to defend them by any other than just and honest means. 
If a lawyer were permitted in conscience to accept a dishonest case 
or to defend a just case by unjust means, then he would be permitted 
in conscience to do an injury to the party opposed to him. For the 
party opposed to him, whether it be the state or an individual, has a 
prior claim cr right, rooted in the law of nature, that he shall not be 
injured in his person or in his goods, without just cause, nor by 
any other than just and honest methods. 



THE CASE OF A CATHOLIC LAWYER 13 

After laying down this general principle, the moralists distin- 
guish between civil and criminal cases, and they allow more freedom 
in the conduct of the latter than in that of the former. In regard to 
civil cases, no lawyer is allowed in conscience to accept a case 
which he knows for certain to be unjust. The reason is quite evi- 
dent. An unjust case is an attempt to do another an injury. If the 
injustice of the case is known beforehand, then the plaintiff wilfully 
endeavors to do an unwarranted injury. The lawyer who accepts 
such a case, cognizant of its injustice, co-operates with the plaintiff. 
If he succeed in gaining his suit, he actually does the injury, know- 
ingly and willingly, and is bound in conscience to make reparation. 
If he lose his case, he injures his own client by putting him to un- 
necessary expense, in prosecuting a case which he knew to be 
worthless. 

If during the course of the trial the attorney discovers that the 
case is an unjust one, and if successful, will inflict an injustice on 
the defendant, he must secretly admonish his client to withdraw the 
case, or else he must throw up his brief. This is precisely the line 
of conduct followed by one of the most distinguished lawyers and 
conscientious Catholics in the United States. In the course of a trial, 
some time ago, he suddenly discovered that his client was endeavor- 
ing to cheat the defendant out of a large sum of money. He im- 
mediately informed his client in secret that he must compromise the 
case for one dollar, or he would expose him. We will say here, in 
passing, that we believe, with most theologians and many laymen, 
that a lawyer, like a physician, is justified in exposing a client or 
patient who is wilfully endeavoring to injure an innocent person, 
if after having been secretly admonished to desist, the client or 
patient still perseveres in his evil intent. If the justice of the case 
which the lawyer is asked to accept, is in doubt, the lawyer may 



14 THE CASUIST.— VOL. II 

accept it, after an understanding with his client. Because the courts 
exist for the purpose of settling controversies, and the justice of a 
case, that in the beginning seemed doubtful, may, during the progress 
of the trial, become altogether evident. Thus it is said that Sir 
Matthew Hale, the distinguished English barrister and judge, had 
determined never to accept a case which he did not believe to be 
just, but was led to relax this rule, having found in two instances 
that cases which at first sight seemed wholly worthless were in 
truth well founded. 

In criminal cases, a lawyer may defend a guilty person, although 
he is fully advised beforehand of the guilt of his client. In fact, 
it is so necessary for the safeguarding of justice that a criminal be 
defended by counsel, that where the accused is not able to retain 
legal help, the same is assigned him by the court. The require- 
ments of the law are thus better subserved and the accused is pro- 
tected in his rights. 

It is a basic principle of our law, that every accused person is held 
to be innocent until proven guilty. Such a person is permitted by 
the law to defend himself against every accusation, be it ever so 
well founded in fact, provided only he make use of no lie or fraud 
or false document or other unjust means in his defense. And all 
this his counsel may do for him. Eventually the administration of 
justice is best promoted by this course. 

Truth is best elicited and difficulties are most effectually disen- 
tangled by the opposite statements of able men. But under no cir- 
cumstances is a lawyer in a criminal case allowed to use unjust 
means in defending his client. He is not allowed to tell lies to the 
judge, nor to produce false witnesses, nor to use spurious docu- 
ments ; because means that are dishonest in themselves are not made 
honest by reason of the end for which they are employed. Hence, if 



THE CASE OF A CATHOLIC LAWYER 



IS 



an authentic document, v. g. a will, is lost, the lawyer is not allowed 
to substitute a counterfeit document in its stead. While this would 
not be a sin against commutative justice, requiring restitution, it 
would be a grievous sin against the truth. 

In the case of Titius therefore, we say that he is justified in ac- 
cepting the defense of persons whom he knows to be guilty. And 
having engaged to defend them, he must defend them to the best of 
his ability. Only his methods of defense must be just and honest. 
It is the privilege of the accused under the law, that even though 
he be guilty, his interests be protected by able counsel, and the 
lawyer who defends him contributes to the better and more equitable 
administration of justice, and to the protection of the rights and 
interests of the citizens. "But necessary and honorable as the pro- 
fession may be, there are sides of it which are far from being in 
accordance with an austere code of ideal morals/' 



III. IMPEDIMENTUM LIGAMINIS 

Bertha, a foreigner, unable to speak English, came to this coun- 
try at the age of sixteen years. She was without money, relatives 
or friends, and was on account of her helplessness impelled to a 
marriage with a worthless, drunken sot, a waiter in a restaurant. In 
less than a year Bertha was deserted by this man, who left her a 
physical wreck. In two years' time she was fully cured and was 
proposed to by Cajus, a Catholic young man. She told Cajus of 
her former marriage and they spent a year in tracing the "where- 
abouts" of the first husband, but could find no trace of him whatso- 
ever. Unsuccessful in their search, they concluded to get married, 
and have been living together ever since, i. e. about fifteen years. 
They now have a family of several children. They are respected by 
the community in which they live, are looked upon as good Catho- 
lics, and bringing up all their children in the faith. They feel that 
they can not separate, if for no other reason, for the children's sake, 
and would like to have their case straightened out, if possible. Dur- 
ing these years they have looked for some trace of the first husband 
with as much diligence as their circumstances would admit of, but 
have found absolutely no trace of him. He was a reckless dissi- 
pated roue fifteen years ago and they think he must be dead. 

Answer. This is a difficult case. On the one hand there is a 
question of a diriment impediment, which can not be removed by 
any ecclesiastical dispensation, and on the other hand there is ques- 
tion of breaking up a family and stigmatizing the children, or of 
compelling the parents to live a continent life, which as Lacroix says, 
"durissimum est compellere homines, culpae immunes, ut vitam coeli- 
bem ducant, ad hoc autem compellerentur si uti non possint Matri- 
monio." In the first place, there can be no question, practically 

i6 



IMPEDIMENTUM LIGAMINIS 17 

speaking, of a separation. The children are young and require the 
care of both parents. The scandal and sensation that would neces- 
sarily follow a separation, would rule the very thought of it out of 
court. The only alternatives left for the confessor to consider are, 
whether the parties should be compelled "ut vitam coelibem ducant," 
or is such a construction of the divine and ecclesiastical law possible 
that the parties "uti possint Matrimonio." 

There can be no question of the truth of what Lacroix says, 
"durissimum est compellere homines, culpae immunes, ut vitam 
coelibem ducant." 

If Bertha and Cajus are at the present moment, in bona Me, or 
even in dubia Me, about the perfect legitimacy of their marital 
relations, then for the good of all concerned, their good faith — 
bona Mes — must not be disturbed, and if they are in dubia Me, 
i. e., they do not know whether they are lawfully married in the eyes 
of God and the Church, it may be possible to change this Mes dubia 
into Mes bona et certa, that is to put their consciences at rest about 
their marriage, in which case prudence and discretion would dictate 
that this would be the line of conduct to be pursued. 

The question for us to decide therefore is : Were Bertha and Cajus 
in good faith, when they got married? Did they believe honestly 
and sincerely that they had sufficient proof of the death of the first 
husband, to justify them in marrying? Or were they in dubia Me? 
That is, did they fear that notwithstanding their investigations, the 
first husband might nevertheless be alive, and the marriage they 
were then contracting might be invalid? And if they were in diihia 
Me, fifteen years ago, when they contracted the present marriage, 
are they necessarily now, and without further inquiry, still in dubia 
Me? Or may they not be in good faith now (i. e., judging honestly 
that the Church does not require any other proof of the death of the 



i8 THE CASUIST.— VOL. II 

first husband than his complete disappearance for eighteen years, 
considering his character, and physical condition) even if they 
were in dubia fide when the marriage was contracted? There is no 
doubt but that Bertha and Cajus entered into the marriage contract 
before the death of the first husband was fully established. They 
did all that was in their power, considering their circumstances, to 
discover and establish the fact of the first husband's death, but still 
the fact of his death remained uncertain. Now the question is, can 
they ever be said to have entered into the second marriage in good 
faith and may we proceed to judge their marriage according to the 
rules which presuppose them to have been in good faith when they 
contracted the second marriage? We are fully aware that some 
theologians deny the possibility of good faith under the circum- 
stances. But other theologians, v. g. Lacroix, Lehmkuhl, etc., hold 
that it is not altogether impossible that in a given case, the second 
marriage may have been contracted in good faith, and the parties to 
it may be left undisturbed. Lacroix treats this case at considerable 
length in the Vlth book of his treatise on marriage, p. iii. He says in 
effect, that Bertha may judge in good faith, upon probable argu- 
ments only, that her first husband is dead, and she may not know 
that any greater certainty is required on this point. Wherefore she 
may be said to have contracted in good faith, if she innocently 
thought that she could lawfully marry again, while there existed 
doubt about the death of her first husband, considering the circum- 
stances of her case, although she might know in a general way, that 
it was not allowed to marry again during the lifetime of her first 
husband. On the contrary, continues Lacroix, if she entered into 
the second marriage, fearing that she might be sinning, she acted in 
bad faith. To this Lehmkuhl adds, that the fear or remorse which 
agitated Bertha, while contracting the second marriage, lest she 



IMPEDIMENTUM LIGAMINIS 19 

might be committing sin, may have arisen from other causes, v. g. 
because she married outside the Church, without pubHcation of the 
banns, etc., and the fact that she feared lest she might be sinning 
in contracting the second marriage, is not of itself conclusive proof 
of bad faith on account of a former marriage tie. The cause of such 
fear and remorse would have to be examined into, in order to dis- 
cover whether it was evidence of bad faith or not. 

In the present case, Bertha may have contracted the second mar- 
riage in duhia Me. That is she may have been in doubt as to 
whether she had sufficiently investigated the death of her first hus- 
band, according to the requirements of the Church. Three years 
had elapsed between the disappearance of her first husband and her 
second marriage. She may have doubted at the time whether there 
was a sufficient interval to justify her in taking for granted that 
her husband was dead, notwithstanding her fruitless efforts to trace 
him. But now it is eighteen years since he disappeared, and con- 
sidering his character and physical condition at the time, she may 
very easily believe now that he is dead, although she did not believe 
it so firmly fifteen years ago, when she contracted the second mar- 
riage. She may therefore believe now bona fide, that any impediment 
ligaminis has long since been removed by death and that nothing 
prevents her being united now in lawful wedlock to Cajus. 

The lapse of time has intervened to turn what was a iides dubia 
fifteen years ago, into a fides bona now. We do not say that this 
is so in the case of Bertha, because all we know about her is what 
is stated in the case as given above. But we judge that what we 
say will fit her case. And the circumstances of her case being what 
they are, we think, salvo meliori judicio, she might be permitted to 
renew her consent, which would confirm her good faith, and be left 
in peace. Note also the following decision: 



20 THE CASUIST.— VOL. II 

The Holy Office was asked, March 22, 1865, whether a woman, 
who had waited in vain for the return of her husband, and who, judg- 
ing after three years that he was dead, had married again in good 
faith, could be allowed to continue in the second union, until it be 
established beyond doubt that the first husband was living? The 
Holy Office answered: 

"Leave them in good faith." 

"Mulier, quum frustra reditum mariti expectasset, post tres annos 
existimans ipsum jam mortuum esse, bona fide alii vivo in matri- 
monio se conjunxit, et cum impossihile nunc sit investigare, utrum 
primus maritus vivat adhuc, aut reapse mortuus sit, quaeritur, utrum 
relinqua ipsa possit in usu secundi matrimonii contracti donee certi- 
tudo hdbeatur de vita primi viri?" 

Resp. "Relinquendos esse in bona Me." 



IV. PLENARY INDULGENCE 

Titius goes to Confession and confesses all his mortal sins and as 
many of his venial sins as he can remember. Thereupon he elicits 
contrition for all his sins, both mortal and venial, and resolves to 
avoid all mortal sins in the future, and as many of the venial sins 
as the grace of God shall enable him to avoid. Then he receives 
absolution. Are not all his sins, both mortal and venial, remitted 
quoad culpamf If now, before committing any new sins, he com- 
plies with all the requirements for gaining a plenary indulgence, 
does he not gain the indulgence ? Why then do the theologians say 
that it is very rare that any one gains a plenary indulgence? For 
instance. Father Noldin says: "Licet omnis indulgentia plenaria, 
quantum est ex parte concedentis, totant poenam temporalem delere 
possit, non tamen omnes eam plene, sed quamplurimi solum ej^ parte 
lucrantur: in illis enim, qui nullam culpam, neque venialem habent 
(is not this the case of Titius ?) omnes poenae delentur : in illis autem 
qui adhuc aliquod veniale peccatum habent, remittuntur quidem poe- 
nae debitae pro culpis jam deletis, non autem illae, quae debentur 
culpae adhuc remanenti." — p. 355. 

Answer. — There are two questions involved in the above case. 
The first question is : Are not all sins forgiven quoad culpam if they 
are confessed as fully as possible, and repented of? The second 
question is : Why should it be so difficult to gain a plenary indul- 
gence, in such a case, since a plenary indulgence is gained by those 
who are free from all culpa of sin, and comply with the conditions 
of the indulgence ? 

Ad. I. When a penitent confesses all his mortal sins and as many 
of his venial sins as he can remember, and is then sorry for all his 
sins both mortal and venial, ex tnotivo universali, or if he be sorry for 



22 THE CASUIST.— VOL. II 

his mortal sins ex motivo particulari and for his venial sins ex mo- 
tivo universal^ v. g., because they are a refusal of obedience 
to God, or because they keep the penitent from being united more 
closely to God, and if then the penitent resolve to avoid not only all 
mortal sin in the future, but all venial sin, in as far as the grace of 
God will enable him, and then receives absolution, all his sins, both 
mortal and venial are remitted quoad culpam, and all his mortal 
sins, quoad poenam aeternam, but not quoad poenam temporalem. 

Ad. II. If now he comply with all the conditions for gaining a 
plenary indulgence, and does not in the mean time commit the 
slightest fault, then he gains the plenary indulgence. But as it is 
almost impossible for a person not to commit some very slight sin, 
V. g., of impatience, or lack of perfect charity toward one's neighbor, 
etc., apart from a very special grace of God, which is not ordinarily 
given, then the penitent does not gain a plenary indulgence, i, e., 
there is a temporal punishment and a culpa remaining on account 
of the sin of impatience or lack of charity, which prevents the gain- 
ing of a perfect' plenary indulgence. Ballerini says : Raro fidelis 
affectum omnem vel minimum erga quodlibet veniale exuunt, ac 
sufficienter dolorem de omnibus venialibus its concipiunt ut omnem 
remissionem consequuntur. 

Theoretically, a penitent confessing all the venial sins that he can 
remember, and eliciting sorrow for all venial sins, confessed and not 
confessed, ex motivo universalis i. e., a motive equally applicable to 
all venial sin, and who then resolves to avoid all venial sin in the 
future, in quantum potest adjuvante gratia Dei, such a penitent is 
absolved from all "culpa peccati," both mortal and venial, and if 
he does not commit any new venial sin before complying with all 
the conditions of a plenary indulgence, then certainly he gains the 
plenary indulgence plenarie. 



PLENARY INDULGENCE 



23 



Practically, this happens so rarely, that theologians say that it is 
very rare that a person gains a plenary indulgence plenarie. 

But although the indulgence granted "ut plenaria" is not gained 
plenarie, or plenissime, it is certainly gained partialiter, and the 
opinion which says that an indulgence, granted ut plenaria, must be 
gained either plenarie or nulla modo, ita ut totum vel nullum effec- 
turn sortiri debeat, is not a probable opinion. 



V. IMPEDIMENT OF SPIRITUAL RELATIONSHIP 

"I have secured a dispensation from the banns for a marriage case, 
the reason being ad concuhinatum finicndum et ad prolem legitiman- 
dam. Now I find that the woman in the case gave private Baptism 
to one of the children, who was at the point of death. Do I have 
to get a dispensation super impedimento cognationis spiritualisf 
Furthermore, is it of obhgation to have witnesses at this marriage ? 
The contracting parties have Hved together nearly twenty years. 
Would one witness suffice, or may not the priest act as a witness ? 

"Thirdly, the man has asthma and, I believe, rheumatism or 
dropsy ; he can not, or at least only with great difficulty, get to the 
church. The statutes of the diocese forbid marriage in the house 
without permission. The man is not confined to his bed. Must I get 
permission to marry them in the house ?" 

Answer. The first question proposed above is one of spiritual re- 
lationship arising from the administration of private Baptism. Bap- 
tism, being a regeneration or new birth, begets relationship, in the 
spiritual order, in the same way that generation in the order of 
nature begets blood relationship. The Church has made this spir- 
itual relationship a diriment impediment to marriage. As nature 
abhors marriages between close blood relations, so does grace abom- 
inate marriages between the spiritually related. Such marriages 
are looked upon by the Church as forbidden by the Christian sense 
of decency, of filial piety and mutual respect engendered by the 
grace of God. In the interests of religion, therefore, the Church 
forbids such marriages. 

According to the Council of Trent (ss. 24), marriage is void 
between the following persons, spiritually related by Baptism : i. Be- 

24 



IMPEDIMENT OF SPIRITUAL RELATIONSHIP. 25 

tween the minister and the bapti::ed; 2. Between the minister and 
the parents of the baptized; 3. Between the godparents and the 
baptised; 4. Between the godparents and the parents of the bap- 
tized. 

To contract this impediment, the Baptism must be validly even 
though illicitly administered. A priest who merely suppHes the 
solemn ceremonies of Baptism, but who does not actually baptize, 
does not contract any spiritual relationship, because no spiritual re- 
generation has taken place. Again, this impediment is by its very 
nature reciprocal; it can not, therefore, be contracted by one person, 
unless it is contracted at the same time by the others, and since it is 
juris ecclesiastici, and does not affect the unhaptised, therefore if 
a baptized person administer Baptism to the child of unbaptized 
parents, he does not thereby contract spiritual relationship with 
the parents. This opinion is supported by Lacroix, Bonacina, Ledes- 
ma, Sanchez, and others against equally grave theologians. 

In like manner, if a baptized mother baptized her own child by an 
unbaptized man, she would not thereby contract any spiritual rela- 
tionship with him, and might be married to him later on, without 
the need of any dispensation super impedimenta cognationis spirit- 
iialis. Again, if a Catholic man marries a convert who is baptized 
sub conditione on joining the Church, and for whom the Catholic 
man acts as sponsor, a dispensation is needed, because the presump- 
tion is against the validity of the non-Catholic Baptism, the probable 
validity of which could hardly be established. 

We come now to the question whether spiritual relationship arises 
from private Baptism administered in danger of death. As regards 
the minister of the Sacrament, all are agreed that he contracts 
spiritual relationship both with the person baptized and with his or 
her parents, whether it be a case of necessity or not. A valid Bap- 



26 THE CASUIST— VOL. II 

tism, whether solemn or private, is a new birth, and as such creates 
spiritual relationship. 

Godparents are not required for private Baptism, hence there 
seems to be some doubt whether they contract spiritual relation- 
ship with the natural parents of the child. St. Alphonsus says that 
more probably they do not contract such relationship. However, 
the Congregation of the Council, in 1678, in answer to the ques- 
tion, replied that godparents, even in private Baptism, do contract 
spiritual relationship with the baptized, and his or her parents. 

A mother baptizing her illegitimate offspring in danger of death, 
thereby contracts spiritual relationship with the father of the child, 
provided the father is baptized, and she can not marry the father 
later on, unless a dispensation from the diriment impediment of 
spiritual relationship be first procured. But if a father or mother 
baptize their legitimate offspring, whether in a case of necessity or 
outside of it, they do not contract any relationship, and are not de- 
prived of the jus petendi debitum, because such a deprivation is by 
nature penal, and is not stated in the law. 

The second question asked above is whether witnesses are required 
for this marriage? 

Before the decree of "Ne temere" went into effect, that is before 
Easter Sunday, 1908, in those places where the 'Tametsi" of the 
Council of Trent was never published, no witnesses were required 
for the validity of the marriage, though two witnesses were required 
by the law of the Church for the licit performance of this marriage. 
However, since Easter, 1908, an important change has been made in 
this most important matter. According to the present regulation 
of the Church, as laid down in the recent decree (August, 1907) 
Ne temere, two witnesses are required in every case for the vahd 



IMPEDIMENT OF SPIRITUAL RELATIONSHIP 27 

celebration of any marriage. Section III of this decree reads 
as follows : 

"Only those marriages are valid which are contracted before the 
parish priest or the ordinary of the place or a priest delegated by 
either of these and at least two witnesses/' 

Section VII further adds : "When danger of death is imminent and 
where the parish priest or the ordinary of the place or a priest dele- 
gated by either of these can not be had, in order to provide for the 
relief of conscience (and, should the case require it), for the legiti- 
matization of offspring, marriage may be contracted validly and 
Hcitly, before any priest and two witnesses." Again, Section VIII 
reads : "Should it happen that in any district the parish priest or the 
ordinary of the place or a priest delegated by either of them, before 
whom marriage can be celebrated, is not to be had, and that this 
condition of things has lasted for a month, marriage may be validly 
and licitly entered upon by the formal declaration of consent made 
by the spouses in the presence of two witnesses." 

Hence it is clear that in every case of marriage witnesses are re- 
quired, and therefore in the case before us the marriage would not 
be valid unless contracted in the presence of two witnessss. 

The third question to which an answer is desired regards mar- 
rying the parties in their homes, which is forbidden by the statutes 
of the diocese. 

The statutes of the diocese, forbidding "home weddings," evi- 
dently do not contemplate a case like this one. The purpose of the 
statute is to discourage home weddings, where there is no grave 
reason why the parties should not be married in the church. There 
is a grave reason here, in fact several grave reasons, why these 
people should be married at home, and the priest may, in the present 
instance, declare the statute suspended. 



28 THE CASUIST— VOL. II 

If there be any real hardship in approaching the bishop for a 
dispensation, for some particular reason, and if it be seriously diffi- 
cult to provide prudent witnesses, then the law of having witnesses 
ceases to bind. But as this does not appear to be the case in the 
present instance, it would be better to procure a dispensation. 



VI. A CLERIC IN MINOR ORDERS ACTS AS 
SUBDEACON 

John is a seminarian in minor orders. His home is in a country 
parish where there are two priests. The pastor asks John to act 
as subdeacon at the solemn Mass on Christmas Day. If John does 
not act, it will be impossible to have a solemn Mass. It is desirable 
that John should act. Is there any canonical prohibition, forbidding 
John, in these circumstances, to act as subdeacon? And if he acts 
as such, does he become irregular? 

Answer. The general law of the Church forbids a cleric, under 
pain of incurring irregularity, to exercise solemnly, a sacred order 
that he has not received. The law reads thus : "Clericus qui scienter 
et sollemniter exercet ordinetn sacrum, quern non habet, Ht irregu- 
laris." In the first place it must be observed that the canon is 
directed against clerics, i. e., one must be at least a tonsured clerk, 
to fall under the canon. Therefore a layman, who, pretending to be 
a priest, should say Mass, or hear Confessions, would not incur 
any irregularity by such acts, although he would sin very grievously. 
Neither would a layman, even though he were a seminarian and 
wore the clerical garb, become irregular by acting as deacon or 
subdeacon at a solemn Mass. One must be at least tonsured to be 
affected by this canon. The next thing to be observed is that irreg- 
ularity is incurred only when a cleric exercises a sacred order, which 
he has not received. Since the discipline of the Church to-day 
allows laymen to exercise solemnly the minor orders, clerics do not 
become irregular for exercising them. The irregularity begins with 
the solemn exercise of the subdeaconate by a minor cleric. The 
other terms of the canon that require an explanation are : 



30 THE CASUIST.— VOL II 

1. Scienter, i. e., the cleric must know that he has not the 
sacred order, which he is now exercising, and moreover he must 
be aware of the irregularity. If he be ignorant of the irregularity, 
he does not sin grievously, and therefore does not incur the censure. 

2. Sollemniter. When do canonists consider a cleric to have sol- 
emnly exercised a sacred order? If the act which the cleric exer- 
cises, is never exercised, except by those who have received the 
order, then it is always done sollemniter. For instance, since Ex- 
treme Unction is never administered except by an ordained priest, 
a cleric not in priest's orders, who would attempt to anoint the 
dying, would necessarily act solemnly and become irregular. In 
like manner also a priest, who would administer Confirmation, would 
of necessity, be acting solemnly, and would become irregular. But 
if the order which the cleric exercises, is sometimes exercised by 
others than those who have received it, v. g, one in minor orders 
may sometimes act as subdeacon at a solemn Mass, then a cleric is 
said to exercise solemnly a sacred order, which he has not received 
if he exercises the act exactly like those do who have received the 
order and if he wears the distinctive ornament of the sacred order. 
Thus the distinctive ornament of a subdeacon is the maniple, and of 
the deacon the stole. If a clerk in minor orders acts as subdeacon 
at a solemn Mass and wears the maniple, he becomes irregular. If 
he omits the maniple, he does not incur any irregularity. Neither 
does a subdeacon become irregular for acting as a deacon at a 
solemn Mass, if he omits the stole, because the wearing of the stole 
renders the act a solemn exercise of the order and brings it under 
the canon. 

On March lo, 1906, the Congregation of Rites issued a decree 
which was confirmed by the Holy Father, and which covers the 
points at issue here. The decree says : 



A CLERIC ACTS AS SUBDEACON 31 

"Clericus ad ntunus subdiaconi oheundum in Missa solemni, nun- 
quam deputetur, nisi adsit rationabilis causa et in minoribus ordi- 
nibus sit constitutus, aut saltern sacra tonsura initiatus." 

The decree forbids laymen to act as subdeacons in a solemn Mass. 
The wording is "num-quam deputetur." That a man who is not in 
subdeacon's orders, may act as a subdeacon at a solemn Mass, two 
conditions are required: 

1. That the man be at least tonsured. 

2. That there be real need for him to act. 

Here it might be inquired whether it be the purpose of the 
decree to forbid even seminarians, who are not tonsured, to act as 
subdeacons in a case of necessity. We hardly think it is. The 
decree seems to be intended primarily for those countries where 
every person who begins to study for the priesthood is immediately 
tonsured, even though he be but a young boy. In those countries, 
generally speaking, there are no seminarians who are not tonsured. 
The custom exists in some countries of Europe on solemn feasts, of 
having a layman, not a seminarian, but a man who has no notion of 
ever being a priest, act as subdeacon. Even a married man, v. g. 
the sexton of the church or the sacristan is at times permitted 
to take the place of the subdeacon. If there were a seminarian in 
the parish, he of course would be tonsured and very likely in minor 
orders and in a few years a subdeacon. His acting as subdeacon 
would not scandalize the faithful, whereas the participation of the 
layman in the sacred function does scandalize the faithful. In 
countries like the United States, young men, studying for the 
priesthood, live in the seminary and wear the cassock, although they 
may not be tonsured. They hold the same station among tlie 
laity as tonsured clerks do in other countries. They are looked 
upon as clerics and the same conduct is required of them as is 



32 THE CASUIST.— VOL II 

required of tonsured clerks elsewhere. In a country like Germany, 
where many men follow the courses of theology at the university and 
intend to be priests, but who have never lived in a seminary, nor 
dressed as clerics, it is unbecoming to allow them to act as sub- 
deacons, and we understand that the decree forbids such action. 
The decree includes also those young men who, in a country like 
France or Canada, enter the great seminary to test their vocation, 
but who do not adopt any clerical dress, nor in any way consider 
themselves as clerics. It is evident that these should not appear at 
the altar in sacred vestments to take part in a solemn Mass. 

In case a cleric not in sacred orders acts as subdeacon at a 
solemn Mass, the decree of the Congregation of Rites just men- 
tioned makes a few observations for his guidance. He is to vest 
exactly like the subdeacon, omitting only the maniple. He is to 
perform all the ceremonies, as if he were a subdeacon, except the 
following : 

1. He must not pour the water into the chalice at the offertory, 
but must let the deacon do so. 

2. He must not touch the chalice infra actionem, nor cover it 
with the pall, nor uncover it. 

3. After the communion, he must not purify the chalice, the cele- 
brant must purify it; after which he (the subdeacon) covers it with 
the veil and burse and carries it to the side table. 



VII. CREMATION 

Mr. B., a firm believer in modern methods of public sanitation, 
has made provision in his will that after his death his body shall 
be cremated. May he receive the last Sacraments and Christian 
burial, and why is the Church so opposed to cremation? 

Answer. All civilized nations, both ancient and modern, have re- 
garded the burial of the dead as a religious rite. In ancient Rome, it 
took precedence over every other service, whether public or private. 
The Roman soldier could demand leave of absence from the army, 
not only to bury his dead, but also for the feast of the purification 
of the family, called feriae denicales, which occurred nine days 
after the burial. Not only were the last rites of the dead considered 
religious or sacred, but the burial place also, by virtue of the laws, 
enjoyed a religious character. It was quite natural, therefore, that, 
in the nascent Church, the Christians, professing a different religion 
from the Romans, should also differentiate themselves from the 
pagans in the manner and place of burying their dead. The com- 
mon practice in pagan Rome, at the beginning of the Christian era, 
was to burn the bodies of the dead. This had not been the ancient 
custom, even among the Romans, and at the dawn of Christianity 
there still prevailed among them the practice of cutting off a 
bone from the corpse, or rescuing one from the fire, in order to 
deposit it in the earth. The reason for this was that the burial 
of the ashes of the dead after cremation did not render the burial 
place sacred; it acquired a religious or sacred character and was 
brought under the protection of the laws only by the burial of 
some part or bone of the body, that had not been cremated. Each 
family had its own burial place, restricted to the parents and 
children and brothers and sisters, and a few intimate friends and 



34 THE CASUIST.— J'OL. II 

favorite freedmen. The idea of a general burial place for all the 
inhabitants of a town or district was unknown to the ancients. 
The indiscriminate burial of friends and foes, relatives and 
strangers, in one monument where their ashes would be mingled 
together, was especially abhorred by the people and severely pun- 
ished by the law. It was to be expected, therefore, that the Chris- 
tians, who believed in the resurrection of the body as one of the 
great articles of the new faith, should have had, from the very 
beginning, a great religious care for the bodies of their dead and 
for all the rites attending their burial. They adhered to the more 
ancient custom of the Romans, as well as of the Jews, of burying 
their dead in the ground. They detested the practice, prevailing at 
that time among the Romans, of burning the bodies of the dead, 
just as they abhorred the other religious rites and practices of the 
pagans. Minucius Felix, in the third century, says that the Chris- 
tians execrate the funeral pile and condemn burial by fire. "We 
follow," he says, "the ancient and better plan of burying in the 
ground." 

From the early writers and Fathers of the Church, we gather 
many reasons why the Christians preferred rather to bury the 
bodies of their dead in the ground than to burn them. Burn- 
ing the dead was a pagan religious rite of the time, from which, as 
from all the religious rites of the pagans, the Christians wished to 
dissociate themselves. One of the central truths of the Christian 
faith was the resurrection of the body. Cremation seemed to deny 
this doctrine. The Saviour was buried in a tomb, from which He 
rose triumphant over death. The disciple desired to be buried after 
the manner of his Master, hoping to rise again in the body, like his 
Master, from the grave. The immortality of the soul and the 
resurrection of the body were two great beacon lights that illumined 



CREMATION 35 

the darkness and the sufferings of the first Christians. Burning 
the body of the dead seemed to them a confession of the total an- 
nihilation of the whole man. It shocked their sense of reverence 
and affection for the dead, but more especially their religious sense. 
And thus, from the very beginning of Christianity, burying the bodies 
of the dead in the ground became intimately associated with the 
Christian faith, and all the rites and ceremonies of the Church that 
accompany the burial of the dead, the prayers of the Missal and of 
the Ritual have grown up around and been developed according to 
the custom of burying the dead in the ground. When we have the 
bodies of our dead near us we are reminded to pray and offer 
sacrifice for them, we erect monuments over them that stimulate 
our piety and proclaim aloud our belief in the resurrection of the 
body and life everlasting. The custom fosters reverence for the 
dead, whose bodies have been sanctified by so many Sacraments. 
It is not as repugnant to our natural instincts to allow our dead to 
return to dust by the slow processes of tender mother earth, as to 
violently burn and destroy them by fire. These are but a few of the 
reasons why the Church, throughout the ages, has preferred to 
bury the bodies of her children in the earth rather than to destroy 
them by fire. 

Cremation does not necessarily deny any truth of revelation. It 
does not necessarily imply a denial either of the immortality of the 
soul or of the resurrection of the body. Whether the body returns 
to dust slowly by the action of the forces of the earth, or quickly 
by the action of the fire, is, in itself, a matter of indifference. 

The Church permits her missionaries, as in India, where cre- 
mation is the ordinary method of disposing of the bodies of the 
dead, to remain passive in cases where they know that the bodies of 
neophytes are to be burned. (Cong, de prop, fide, Sept. 27, 1884.) 



36 THE CASUIST.— VOL. II 

But circumstances may add a very definite character to some- 
thing that is quite indifferent in itself. And this is the case with 
cremation, generally speaking. The Church is cognizant of the 
fact, that the cremation of human bodies, to-day, is not only a de- 
parture from the time-honored and world-wide Christian custom 
of burying in the ground, but that it is meant, as a rule, to be a pro- 
test against the Christian faith. The promoters of cremation are 
endeavoring to rehabilitate the ancient pagan custom of disposing 
of the bodies of the dead in order to put an end to Christian ceme- 
teries and Christian burial rites and practices, in order to destroy 
the powerful evidence they bear to the Christian faith, and the 
influence they exert in promoting Christian piety. By cremating 
the human body, they wish to signify the total annihilation of man 
by death. Thus cremation becomes, per accidens, a profession of 
heresy and an attack on the Christian faith. Hence the Church 
forbids it. In particular circumstances, as, v. g., during an epidemic, 
the Church makes no objection to the burning of the human body. 
The only argument that can be urged in favor of cremation is the 
argument founded on the consideration of the public health. But 
the public health is already amply protected by the laws of the 
Church regarding the location of cemeteries and the manner of 
burying the body. 

The Congregation of the Holy Office has repeatedly, in the last 
twenty-five years, issued decrees prohibiting the cremation of the 
bodies of the dead. The following is a summary of these decrees : 

It is forbidden for Catholics to belong to any society or organ- 
ization whose object is the cremation of the bodies of the dead; 
and if such society be in any way affiliated to the Masons, its mem- 
bers fall under the ban of excommunication. 

It is forbidden for a Catholic to order his own body, or the body 



CREMATION 37 

of any one else, burned ; a Catholic may sometimes co-operate, 
materialiter, in cremating the bodies of the dead, either as officials 
or as workmen, if such co-operation is not desired precisely because 
the officials or workmen are Catholics, and as a sign of contempt 
for the Catholic faith and if the cremation contain no profession of 
Masonry. 

It is not allowed to give the last Sacraments to a dying man or 
woman, if he or she insists that after death the body shall be cre- 
mated ; neither is it allowed to give the remains Christian burial, if 
it be known publicly that the deceased continued in this mind to the 
end of Hfe. 

It is not allowed to say Mass for such persons publicly or in the 
name of the Church, but Mass may be offered privately. 

It is lawful to perform the last rites over the dead, either at their 
home or else in the Church, but not at the crematory, if it was not 
the will of the dead that his body be cremated, but the will of those 
in charge of the funeral, provided, of course, that all scandal be 
removed. 

Again, it is permitted to give Christian burial to those who order 
that after their death their bodies shall be burned, provided they 
are ignorant of the Church's prohibition; also to those who, after 
having made such provision in defiance of the Church's laws, de- 
sired sincerely, before their death, to revoke the provision, but 
who for some valid reason were unable to do so. 

This is a short synopsis of all the decrees concerning cremation, 
issued by the Holy Office in the last twenty-five years. 

Mr. B., therefore, may not receive the Sacraments of the Church, 
as long as he continues in his resolve to have his body cremated, be- 
cause he is in mortal sin, defying a grave law of the Church. And 
if it be known by the general public that he persevered to the end 
of his life in his resolve to have his body cremated, he can not 
receive Christian burial. 



VIII. SECRET SOCIETIES 

A convert to the Catholic faith is a knight of Pythias. He was a 
knight for many years before he became a Catholic. He carries a 
few thousand dollars life insurance in the order. As he is a poor 
man, it would be a great hardship for him to quit the order and for- 
feit this insurance. What shall he do about it? 

Amzver. — There are two categories of so-called secret societies, 
forbidden to Catholics: (a) societies, like the Masons, that are for- 
bidden under censure, i. e., under pain of excommunication; (b) 
societies, like the Knights of Pythias, that are forbidden under pain 
of sin, but not under censure. 

On October ii, 1869, Pope Pius IX issued his famous Bull, 
Apostolicae Sedis, in which among many other censures, reserved 
to the Holy See, is the censure of excommunication pronounced 
against "nomen dantes sectae Masonicae ant Carbonariae ant aliis 
ejusdem generis sectis, quae contra ccclesiam vel legitimas potes- 
fates sen palam sen clandestine machinantur necnon eisdem sectis 
favorem qualemcunque praestantes earumque occultos coryphaeos 
ac duces non demintiantes, donee nan rcnuntiaverint." 

Two qualifications are required in order that a society or organ- 
ization fall under the bann of excommunication: (a) its members 
must constitute a sect, that is, they must be united very closely 
together by the profession of the same principles, that the society 
as a body professes and advocates ; (b) it must war against the 
Church or against the State, even though it exist for other purposes 
also. 

The societies generally understood to possess these two qualifi- 
cations and therefore to be forbidden under pain of excommunication 
are: 

38 



SECRET SOCIETIES 3^ 

1. The Masons. Pope Clement XII, in 1738, first excommunicated 
the Masons. Then Benedict XIV, in 175 1, reaffirmed the censure, 
as did Leo XII, in 1825, Pius VIII, in 1829, Pius IX, in 1869, in the 
Bull Apostolicae Sedis, just mentioned, and finally Leo XIII, in 
1884, in the Bull "Hiimanum gemis." 

2. The Carbonari, a secret political society organized in Italy, 
in the beginning of the last century, whose purpose was the over- 
throw of the existing government and the establishment of a 
republic. They were excommunicated by Pius VIII and Leo XII. 

3. The Fenians. This society was prohibited under censure of 
excommunication, by the Holy Office, January 12, 1870. 

4. Societies of Anarchists and Nihilists, in Russia especially, but 
wherever they may exist, since their purpose brings them under 
the ban of excommunication. 

No Catholic, therefore, may belong to any of the above named 
societies, without committing mortal sin, and at the same time in- 
curring excommunication, which excommunication is reserved to 
the Holy See. 

In the second category of forbidden societies, namely, of those 
that are forbidden under pain of mortal sin, but without the censure 
of excommunication, are to be placed the three societies, expressly 
mentioned in the official papal documents, that is to say: 

I. Odd Fellows ; 2. Knights of Pythias ; 3. Sons of Temperance. 

There are other societies also forbidden under pain of mortal 
sin, V. g., the Good Templars, Cremation Societies, etc., but our 
concern is at present with the three first mentioned. On February 
13, 1896, the following letter was sent to the archbishops of the 
United States, from the Apostolic Delegation at Washington, D. C, 
for the information and guidance of the Ordinaries and clergy of the 
United States: 



4© 



THE CASUIST.— VOL. It 



Apostolic Delegation, 

United States of America. 

Washington, D. C, Feb. 13, 1896. 
Your Grace: 

Under date of August 13, 1895, I received from the Cardinal 
Prefect of Propaganda instructions regarding the application of the 
well-known decree of the Holy Office condemning the three socie- 
ties, "Odd Fellows," "Knights of Pythias," and "Sons of Tem- 
perance." According to these instructions which I communicated to 
your Grace at the time, the condemnation was to be considered ab- 
solute, and wherever peculiar circumstances seemed to merit special 
consideration in particular cases, the matter was to be referred by 
the Ordinary to Rome. In consequence, many Bishops have, since 
that time, sent cases to the Propaganda which have been referred to 
the Holy Office for consideration. The Supreme Congregation, 
after deliberation on such cases, has, by a decree dated January 18, 
1896, determined on a course which is explained by the words which 
I quote from the decree itself: — 

"Qusesitum fuit an remota quavis alia earundem sectarum partici- 
patione, hoc saltem liceat nomen proprium in sociorum catalogis 
retinere, necnon in prsefatae taxse vel seris alieni solutione state 
tempore perseverare. 

"Quod dubium sane gravissimum, cum SS. D.N. Sacrse huic 
Supremse Congni commiserit enucleandum, eadem S. Congregatio, 
re mature perpensa respondendum censuit: — Generatim loquendo 
non licere : et ad mentem. Mens est quod ea res tolerari possit 
sequentibus conditionibus et adjunctis simul in casu concurrentibus, 
scilicet: 10. Si bona fide sectae primitus nomen dederint antequam 
sibi innotuisset societatem fuisse damnat'am. 20. Si absit scandalum 
vel opportuna removeat'ur declaratione id a se fieri ne jus ad emolu- 



SECRET SOCIETIES 41 

menta vel beneficium temporis in aere alieno solvendo amittat; a 
quavis interim sectae communione et a quovis interventu, etiam ma- 
teriali, ut prsemittitur, abstiendo. 30. Si grave damnum sibi aut 
familiae in renunciatione obveniat. 40. Tandem ut non adsit vel 
homini illi vel familiae ejus periculum ullum perversionis ex parte 
sectariorum, spectato prascipue casu vel infirmitatis vel mortis: 
neve similiter adsit periculum funeris peragendi a ritibus catholicis 
alieni. 

"Quae cum SSmo Dno N. papae Leoni XIII relata fuerint, in 
totum approbata et confirmata fuerunt. Verum cum de re gravis- 
sima atque periculorum et difficultatum plena agafur, quae plurimas 
non modo dioceses sed et provincias ecclesiasticas respicit, idem 
SSmus Dnus N. jussit ut uniformis regulse servandae causa, casibus 
particularibus Eminentia Tua et in Apostolica Delegatione succes- 
sores providere possint." 

I beg your Grace to communicate the above disposition of the 
Holy See as soon as possible, to your Suffragans and through them 
to the Confessors. With sentiments of highest esteem and fraternal 
charity, I remain. 

For His Eminence, Apostolic Pro-Delegate, 

Most faithfully yours in Xt, 

D. SBARRETTI, Auditor. 

From this decree of the Holy Office, it is evident that members 
of the three societies, or of any one of them, can not be absolved 
unless they absolutely renounce their adherence to the prohibited 
societies. This renunciation must be external, complete and made 
in good faith ; because the aims and purposes of these societies are 
known to be dangerous to religion and to society, although the 
individual members of them may be quite ignorant of this fact. 



42 



THE CASUIST.— VOL. H 



Since, however, besides their leading aims, which are for the most 
part a matter of secrecy, these societies have for their secondary 
object mutual assistance in temporal things, the question arises 
whether a member, who having joined the association in good faith, 
has given his share toward the accumulation of a benefit fund, a pro- 
portionate part of which was to be returned to him or his family 
with just interest, either as savings or as relief money in case of 
sickness or death — whether such a member must so far renounce 
his connection with the society as to sustain a serious loss. To this, 
the Holy Office answers : As a rule, such financial loss is not a valid 
reason for continuing in the society, since it is impossible for a man 
to remain a nominal member of a society, without either furthering 
its main object', though unwillingly and unconsciously, or else 
giving scandal to those who do not know the true reasons for his 
remaining a nominal member, and who will naturally assume that 
such membership means practical co-operation in the aims and pur- 
poses of the society. 

Nevertheless, there may be cases where there is no scandal given 
by the person continuing a nominal member, and where there exists 
no danger for his faith and where withdrawal would mean serious 
pecuniary loss. In such cases, provided the man joined the society 
in good faith, not knowing that it was forbidden, the pastor or con- 
fessor may make application in order to obtain permission to give 
the man absolution although he allows his name to remain on the 
rolls of the society in order to be entitled to the insurance for which 
he has been paying perhaps for many years. If such be the case, 
the Apostolic Delegate in Washington has been empowered by the 
Holy See, to allow a mere nominal membership to continue, accord- 
ing to his judgment of the case, for tlie sole purpose of securing for 
the applicant an external title to what really belongs to him, without 



SECRET SOCIETIES 43 

identifying him with the dangerous or unlawful character of the 
forbidden society. 

In summing up the case before us, we would say that : 

1. Since the man in question became a Knight of Pythias in good 
faith, that is before his conversion to the Catholic Church, 

2. Since he can not now withdraw from the order without serious 
pecuniary loss, being a poor man ; then 

3. If his nominal membership create no special danger for his 
spiritual interests, and 

4. If such membership give no scandal, then application ought to 
be made to the Apostolic Delegate in Washington by the man's con- 
fessor, or through him by the bishop, to obtain permission for the 
gentleman to continue a nominal member of the K. P.'s, in order to be 
able to claim legally the insurance that belongs to him and to his 
family. The confessor has no power or jurisdiction to judge 
whether the conditions that may permit nominal membership are ver- 
ified or not; neither has the ordinary such power. The Apostolic 
Delegate alone is the competent authority to determine whetlier the 
circumstances of the case call for a special permission or authoriza- 
tion to continue a nominal member of the society. 



IX. THE SEAL OF CONFESSION 

Titus, a priest, has for some time, been hearing the monthly con- 
fessions of certain boys. Recently the boy J, came to Confession 
and confessed among other things, that he had been "mad at a boy." 
No names are mentioned, but the priest happens to know the boy 
J., who is confessing, and thinks he knows also the one at whom 
J., as he says, is "mad," and whose name is H. After questioning 
to satisfy himself that J. entertains no further ill-will against the 
other boy, the priest absolves and dismisses the penitent. Subse- 
quently he notices that the two boys J. and H. are no longer seen 
together, though they had in the past associated a great deal. Titus, 
in an occasional talk with H., whom he thinks to be the boy re- 
ferred to by J. in Confession, asks H. if he and J. were not on good 
terms, and H. admits they were not. Titus brought up this matter 
in order to bring about a reconciliation between the two boys, one 
of whom, J., had in Confession expressed his consent to be 
reconciled. 

Did Titus act properly in asking this other boy H. about the mat- 
ter? e. g., if he and J. were on good terms? Would the two boys 
concerned be likely to think that the priest made use of knowledge 
which he had obtained in the confessional ? 

Answer. There are two decrees of the Holy See extant, regard- 
ing the use of knowledge gained in the confessional. The first is a 
decree of Clement VIII, May 26, 1593, in which superiors of reli- 
gious orders are forbidden to make use of any knowledge gained in 
the confessional, for the external government of the order. DeLugo 
and St. Alphonsus, both maintain that this decree is to be extended 
to all superiors, even though they belong to the secular clergy, in 
relation to all classes of penitents, because the decree does not 

4<- 



THE SEAL OF CONFESSION 



45 



contain merely a particular regulation for some individuals, but it 
promulgates a divine law concerning the seal of Confession. And 
for this reason, they say, that the doctrine of the earlier theologians, 
that knowledge gained from Confession might be made use of, pro- 
vided there was no danger of revealing the sins of the penitent, 
that is, provided others would not suspect anything about the peni- 
tent, must be corrected. The other decree is a decree of the Holy 
Office, November i8, 1682, by which it is forbidden to make use of 
information gained in the confessional, to the detriment of the peni- 
tent, even though by so doing the penitent might be saved from 
some greater evil or suffering, and especially from some greater sin. 
This decree necessitates the amendment of the principle, held also 
by the earlier theologians, that information gathered in the con- 
fessional might be made use of, provided the penitent could not be 
rationabiliter invitus, that is to say, when the use of such information 
is necessary to reclaim the penitent from sin. 

St. Alphonsus admonishes all confessors to be exceedingly careful 
in the matter of the seal of Confession, since there is always more 
or less danger of either revealing the sins of the penitent or else 
creating hardships for him. We will give a brief synopsis of the 
teaching of the holy Doctor in regard to the seal of Confession. 
He says that it is never allowed to make use of any information 
gained from the Confession of a penitent, if 

1. There be danger of revealing a penitent's sins; 

2. Thereby a hardship be created for the penitent, or the penitent 
be led thereby to dislike or detest Confession ; 

3. Others suspect that the seal of Confession is being violated, or 
in other words, if others are scandalized. 

I. Even though some greater evil or sin might be obviated for 
the penitent, by the use of information gained from the penitent's 



46 THE CASUIST.— VOL. II 

Confession, it is never allowed to use it. Not even if the penitent 
did not know that the confessor was acting on information gath- 
ered from his Confession. The reason why such knowledge may 
not be used, even when the penitent is quite ignorant that it is 
being used, is that the faithful would be turned away from the 
practice of Confession, if they thought that the confessor might 
use the information gathered from their Confessions. 

Therefore, if the confessor knows from the penitent's Confession, 
that the penitent is making bad Confessions, or is indisposed, he 
may not, for that reason, refuse to hear his Confession. For such 
conduct on the part of the confessor would be a violation of the seal 
and would render Confession odious. 

It is never allowed to question the confessor of children con- 
cerning their conduct, nor is it permitted to consult a confessor re- 
garding young men who are to receive holy orders. The only 
information that a confessor may volunteer under such circum- 
stances is that such penitents frequent the Sacraments. 

2. It is lawful to use information gathered in the confessional, 
provided such use does not result in hardship to the penitent and 
there be no fear of any revelation. For if there be no fear either of 
revelation or of hardship for the penitent, the Sacrament will not 
be made odious, even though the penitent should notice that some use 
was being made of what he had told in Confession, because ft' the 
use being made of knowledge gained in Confession is in no wise 
detrimental or burdensome to the penitent then such use does not 
make Confession more difficult or distasteful. 

Therefore a confessor may make use of what he knows from 
Confession for the reformation of his own life, for the better ful- 
fillment of his office or duties as a confessor, to pray to God for 
his penitents, to treat them with more kindliness, even though the 



THE SEAL OF CONFESSION 



47 



penitent might notice that this was being done because of what he 
told in his Confession ; since the Sacrament is not thus made hateful ; 
the confessor may also use knowledge that he has from Confession, 
to consult works on theology and the spiritual life; to temper his 
dealings with penitents in the confessional; to save himself from 
the pitfalls that his penitents have encountered ; to admonish others, 
etc. In sermons it is allowed to speak in a general way of things, 
that a preacher would not think of unless he heard Confessions, but 
he must have a care not to speak of any particular sins of individual 
penitents. 

3. A confessor may do anything that he ought to do, or would 
have done, even if he had not heard Confessions ; even though it was 
the Confessions that put it into his mind to do it now ; provided he 
take care to admonish the penitent, lest he be scandalized. But it is 
not lawful for a confessor to do anything on account of something 
he hears in Confession, which otherwise he would not have done, if 
from his doing so, a hardship might be created for the penitent, or 
there be fear or danger that something be revealed. The confessor 
is obliged in conscience to wait until some future event or occur- 
rence furnish him an excuse or motive for doing what would other- 
wise not be done. 

In answer to the question now, it is evident from what has been 
said above, that the priest had no right to ask the question which 
he put to H. Even though his purpose was to remove an occasion 
and cause of sin between the two boys, still his knowledge was 
gathered exclusively from the Confession of one of the boys, and its 
use, under the circumstances, would create suspicion that he was 
breaking the seal of Confession, and make Confession distasteful and 
even odious. Even though the priest might have had J.'s permis- 
sion to speak of the matter to the other boy, he would first have to 



48 THE CASUIST.— VOL. II 

explain the circumstance of the permission to H. in order to 
remove any scandal that H. might take by thinking that the priest 
was violating the seal of J.'s Confession, in speaking to him about 
a reconciliation. The priest should have waited until he learned, by 
some means independent of the confessional, that J. and H, were 
estranged, and then, letting the boys know clearly whence he had 
his knowledge, might have tried to reconcile them. 



X. ANTICIPATING THE OFFICE 

X. has been in the habit of anticipating his office every day at 
two o'clock P. M. He has no special faculty from his Bishop or 
from the Holy See to do this. He finds it extremely convenient, 
however, although there are many days when he could wait a few 
hours longer before anticipating for the next day. 

Was his anticipation of the office at two o'clock on those days 
when he might have waited a few hours longer, valid, and if valid 
was it also lawful ? 

Answer : 

According to the opinion of many approved theologians, and 
which opinion is therefore certainly probable, the office may be an- 
ticipated every day from two o'clock in the afternoon, in all cases 
validly and for a slight reason at least, licitly, without any special 
indult or faculty from the Holy See. We are aware that this is not 
the more generally received opinion of the theologians, either an- 
cient or modern, but still it is supported by theologians of such great 
authority that it can be said to enjoy both internal and external 
probability. 

St. Alphonsus, in the first edition of his IMoral Theology, called 
this opinion most probable, probablissima. In the later editions, 
however, of his work, he retracted these words, and expressed his 
belief that the truer opinion was that it was not allowed, without 
a special permission from the Holy See, to anticipate the office at 
two P. M. But Sabetti, Bucceroni, Ballerini-Palmieri, Genicot, 
Noldin, etc., as w'ell as the Salmanticenses, Sanchez, Viva, etc., all 

49 



50 THE CASUIST.— VOL. II 

agree in saying that the opinion is solidly probable, that holds that 
a priest may anticipate his office every day at two o'clock in the 
afternoon without any special authorization from the Holy See. 
They reach this conclusion in this way. In the beginning, matins and 
lauds were recited during the night time. Gradually, however, the 
practice grew up of anticipating the next day's office the evening 
before, after sunset. In the course of time this was improved on, 
by reciting matins and lauds when the evening began to fall, that is 
to say, when the sun was half way between the zenith and the 
horizon. Because, when the sun reached this point, the tempus 
vespertinum began. Finally the custom grew of anticipating the 
next day's matins and lauds, from the beginning of the tempus ves- 
pertinum not of the natural day, but of the ecclesiastical day. 
Now, the tempus vespertinum of the ecclesiastical day began at two 
o'clock. That is to say, the evening of the ecclesiastical day began 
when vespers were recited in the choir. Vespers were recited in 
choir when the sun was half way between the zenith and the horizon 
in the afternoon. Now, however, vespers are recited in choir at two 
o'clock P. M., so that two o'clock P. M. is now the beginning of the 
ecclesiastical evening. As soon, therefore, as vespers have been 
said in the choir, i, e., about two P. M., the next day is, figuratively 
speaking, beginning, and the office of the next day may be begun. 
St. Thomas says: "Quantum ad ecclesiasticum officium incipit 
dies a vesperis ; unde si aliquis post dictas vesperas, et completorium, 
dicat matutinum, jam hoc pertinet ad diem sequentem" (Quodlib. v, 
a. 28). 

In 1876 the Congregation of Rites was asked: "Quanam hora 
liceat incipere privatam recitationem matutini cum laudibus vespere 
diei praecedentis ?" To which the Congregation made reply: "Pri- 
vatam recitationem matutini cum laudibus vespere diei praecedentis 



ANTICIPATING THE OFFICE 



SI 



incipi posse quando sol medium cursum tenet inter meridiem et 
occasum." Again, a few years later, the same congregation was 
asked: "An praedicta responsio ita intelligenda sit ut ille non satis- 
faceret obligationi suae, qui matutinum cum laudibus vespere diei 
praecedentis recitasset priusquam sol medium cursum teneret inter 
meridiem et occasum?" To which was answered: "Consulantur 
probati auctores." From these two answers of the Congregation 
of Rites we gather, first, that if the opinion which allows anticipa- 
tion of matins and lauds from two o'clock P. M. were wrong, the 
congregation would have condemned it ; and secondly, since the con- 
gregation refers us to approved authors, and since many of the most 
eminent among these allow a priest to anticipate matins and lauds 
from two o'clock in the afternoon of the preceding day, it follows 
that the Holy See gives countenance, constructively, to the practice 
of anticipating matins and lauds at two o'clock of the preceding 
day, without a special dispensation. 

Therefore, we say, whoever anticipates his office at two o'clock the 
preceding afternoon, does so validly, that is, he is not bound under 
pain of mortal sin to repeat it later, either on that day or on the 
next; and if he have a "tenuis ratio" for so anticipating, he does 
so lawfully. Now, in the case before us, X. has a sufficient reason 
on some days for anticipating at two o'clock, but then on other days 
he has no special reason, and could just as well put it off until 
later. However, on such days as he has no special reason for be- 
ginning the next day's office at two o'clock the very convenience 
that it affords him is a sufficient reason. It lends regularity to his 
recitation of the office, and strengthens a very excellent practice, 
and is of itself ample reason for anticipating every day at two 
o'clock P. M. It would be difficult to convince us that not every 
secular priest in this country has sufficient reason to anticipate his 



52 



THE CASUIST.— VOL. II 



office at two o'clock P. M, every day, without any special dispensa- 
tion or faculty to do so. But when one considers the weight of 
theological authority which justifies one in so doing, he were a very 
scrupulous and unreasonable man, indeed, who would give up so 
laudable a practice for so poor a scruple. 



XI. DISPARITAS CULTUS 

Bertha is married to a man who does not know anything about 
his baptism. Bertha is a Cathohc. The man was the son of a non- 
CathoHc family, the mother being a Methodist, but the son has ap- 
parently no religion at all. I think therefore that I should pro- 
cure for them a dispensation super impedimento disparitatis cultus. 
Now the man always runs away when I go there, as I have been 
attending his stepdaughter. I would hardly care to look to him for 
a renewal of consent, because he \vould not know what it was all 
about, and if they did renew their consent I would be uneasy about 
its being a valid consent. It would be hard enough to make the 
wife do the renewing, because she has lived with a man who was 
not her husband, before her present marriage, and is perfectly satis- 
fied that the present marriage is all that it ought to be. I don't 
know whether I ought to get a dispensation in radice, or whether 
to get an ordinary dispensation and take advantage of what Sabetti 
says, viz., that the opinion seems entirely certain that the party 
who is ignorant of the impediment need not renew the consent in 
this one case — that a Catholic marry an unbaptized person. I never 
met this man, but his wife tells me he is a very good man, and once 
I became acquainted with him he would be glad to see me ; but he 
would not understand about the impediment and might think that 
I was unnecessarily interfering in his private concerns. Should 
I get a sanatio in radice, or the ordinary dispensation, and will it 
be sufficient in the second case to have the wife renew her consent? 

Answer. The cause of the difficulty about this marriage is the 
uncertainty of the husband's baptism. If he was never baptized, or 
if ever baptized, then never validly, there seems to have existed at 

53 



54 THE CASUIST.-VOL It 

the time of his marriage to a Catholic woman a diriment impedi- 
ment disparitatis cultus, which was not removed by a dispensation, 
since we suppose that they were not married by a priest, and which 
rendered any marriage with a baptized woman invalid. That the 
man, and even the woman, were ignorant at the time of the impedi- 
ment and its effect, did not stay its operation of invalidating the 
marriage. Their marriage consent may have been perfectly valid 
and sufficient — qua consensus — still it could not create a valid mar- 
riage contract, because it was vitiated or rendered inoperative by 
reason of the impediment. 

In the present case the man's consent was valid, because he knew 
nothing of the impediment. It would seem also that the woman 
was ignorant of any diriment impediment, and at the time of the 
marriage gave a valid consent. "In dubio standum est pro valore." 
In case, therefore, that it be fully established that the man was never 
baptized, and it be impossible or extremely difficult to bring about 
a renewal of consent, a sanatio in radice may be procured and ap- 
plied without renewal of consent on either part ; or better still, ap- 
plication should be made to Rome, according to the Holy Office, 
if the parties were married without a dispensation super impedi- 
mento disparitatis cultus, and the baptism of one of the parties was 
in doubt at the time of the marriage, but afterward was proven to 
have been no baptism at all. In this case Rome will advise what 
course ought to be pursued in each instance. If the woman was 
aware, at the time of her marriage, or has become aware since, 
that her marriage was invalid on account of a diriment impedi- 
ment, she must renew her consent, since the consent that she gave 
at her marriage was worthless on account of her knowledge of the 
impediment, or has become worthless since, owing to such knowl- 
edge, and therefore can not be said to endure, so that it might be 



DISPARITAS CULTUS 55 

healed, since it never existed or has ceased to exist. Therefore it 
must be renewed, i. e., a new consent must be given or there can be 
no valid contract. But all this reasoning has proceeded on the as- 
sumption that there existed from the beginning of this marriage a 
sufficient impediment to have invalidated the marriage. Now is 
such really the case ? Is it certain that this man was never baptized ? 
Is his baptism sufficiently doubtful to create a presumption against 
the validity of his marriage? No, by no means. It is not certain 
that he was never baptized. He himself does not know anything 
about his baptism, but his mother was a Methodist, and the Meth- 
odists as a religious body baptize validly. This fact alone creates 
a presumption, according to the decisions of the Congregation of 
the Holy Office, in favor of the man's baptism, in ordine ad validi- 
tatem matrimonii contracti vel contrahendi. 

Only in cases where it is perfectly certain that one of the parties 
to a marriage contract was never validly baptized, can there be ques- 
tion of the impediment disparitatis cultus. In our case there is no 
such certainty. The whole question must, therefore, be solved on 
other lines. There is well founded doubt whether this man was 
ever validly baptized. Upon investigation the doubt remains. It 
can not be said with certainty that he was baptized, and it can not 
be said with certainty that he was not baptized. It is a case of "hap- 
tismus duhius." Now this man, only doubtfully baptized, marries 
a baptized woman, before a magistrate or a non-Catholic minister 
of the Gospel, without any dispensation super impedimenta dispari- 
tatis cultus. Is such a marriage invalid, or is it valid, or is its 
validity doubtful. 

"Num validum sit matrimonium, si de baptismo unius partis grave 
dubium oritur ?" The solution of this question is to be found in the 



56 THE CASUIST.— VOL II 

decrees of the Holy Office, v. g., decrees Nov. 17, 1830; July 7, 
1880; Sept 18, 1890, etc,, etc. 

According to these decrees, when the baptism of one of the parties 
to a marriage contract is doubtful, whether the doubt concern the 
fact of the baptism or its validity, "in ordine ad matrimonium tum 
contrahendum tum contractum, ex praesumptione pro valido habe- 
tur." It is only in cases where it is altogether certain that no bap- 
tism was ever conferred, or if conferred, then invalidly, that the im- 
pediment disparitatis ciiltus, invalidates the marriage. Now if a 
person, regarding whose baptism there exists grave doubt, but whose 
baptism is presumed to have been valid in ordine ad matrimonium, 
is married to a baptized person, without a dispensation, then theo- 
logians consider such a marriage valid, even though, in reality, the 
person thus married was never baptized; they hold that in such 
cases the Church dispenses super impedimenta disparitatis cultus. 
If, however, in the same case, when a doubtful baptism has been 
presumed valid, and a marriage is contracted, and afterward it be 
established on incontrovertible evidence that the doubtful baptism, 
thus presumed valid, was in reality no baptism, then recourse must 
be had to the Holy See, which will decide what is to be done in 
each particular case. 

For determining when a baptism may be presumed valid, in ordine 
ad matrimonium, the Holy Office lays down the following rules : 

1. If the person, whose baptism is in doubt, belonged to a sect 
which does not insist, in its ritual, on the essential form and matter 
of baptism, then each case must be examined separately. 

2. If the person belonged to a sect whose ritual does prescribe 
the essentials for a valid baptism, then the baptism of such a per- 
son is presumed to have been valid, and no further investigation is 
necessary. 



DISPARITAS CULTUS 



57 



3. If, upon examination, in either case, the baptism continues 
doubtful, then it is presumed vahd, in ordine ad validitatem matri- 
monii. 

A general rule of the Holy See in this matter is: Baptismus 
dubius in ordine ad matrimonium contrahendum, vel jam con- 
tractiim, haberi debet ut validus. 

In conclusion, therefore, we say that this Catholic woman's mar- 
riage to this doubtfully baptized man, although entered into with- 
out a dispensation, is to be presumed valid in the eyes of the Church 
until it is proven invalid. 



XII. A CASE OF THE IMPEDIMENT OF 
CONSANGUINITY 

Titius and Bertha desire to contract a valid marriage, and to this 
end they consult their parish priest. Now the parish priest is 
aware of a persistent rumor to the effect that Titius and Bertha are 
related to one another "primo gradu lineae collateralis" : in other 
words, that they are brother and sister. He refuses to marry them 
until he shall have first investigated this rumor and discovered 
the ground on which it rests. Upon investigation, he finds that the 
grounds for the suspected relationship are the following: 

1. Public report: all the people of the neighborhood believe that 
Titius and Bertha are brother and sister. 

2. Bertha's mother, in bringing suit against Sempronius for the 
support of Bertha, swore that Bertha was his child, although 
Bertha's mother was not married to Sempronius. 

3. Sempronius, on his death bed, acknowledged that Bertha was 
his child, and desired that it be so entered on the baptismal record. 

Sempronius married Anna, another woman, who bore him Titius, 
who now desires to marry Bertha. After the death of Anna, Titius' 
mother, Sempronius, his father, married Bertha's mother. 

The parish priest, discovering this to be the case, thought that 
the grounds for suspecting that Titius and Bertha might be brother 
and sister were sufficient to justify him forbidding them to marry. 
Accordingly, he refused to marry them, and forbade them, under 
pain of having their marriage annulled, to attempt to get married. 
But this did not deter the young couple from endeavoring to carry 
out their purpose of getting married. The whole case was, there- 
fore, brought before the bishop. Now Bertha's mother appears be- 

58 



A CASE OF THE IMPEDIMENT OF CONSANGUINITY 59 

fore the bishop's court and makes affidavit that Sempronius was 
not Bertha's father: that when she stated that he was, she had 
simply lied, in order to keep Sempronius from marrying another 
woman, and to get support from him for her child. That if Sem- 
pronius declared on his death bed that Bertha was his child, he 
did so at her most urgent prayer in order to remove the stigma 
from her, who was then his lawful wife, and from her daughter: 
but that there was no truth whatever in Sempronius' statement. 

In the meantime, however, Titius and Bertha are living together 
as husband and wife and have children. Bertha's mother is near- 
ing death and desires very much that Titius and Bertha should be 
married validly and licitly in the church before her death. In this 
extremity the whole situation is laid before the Holy See, with the 
prayer that the Holy See would deign to determine authoritatively 
whether there were sufficient ground for suspecting the alleged 
relationship between Titius and Bertha, and therefore forbidding 
their marriage by the Church, or whether the grounds for the sus- 
pected relationship were insufficient in Canon Law, and that Titius 
and Bertha might be married by a priest. 

To this prayer of Titius and Bertha the Congregation of the 
Inquisition, or the Holy Office, on April 6, 1906, returned the fol- 
lowing answer: "After examining all the law and the facts in the 
case, the non-existence of the impediment of blood relationship is 
not sufficiently established, and, therefore, the marriage of the pe- 
titioners can not be allowed." This reply or decision of the Holy 
Office was approved by the Supreme Pontiff. 

There is question here of a doubtful impediment, impediment urn 
dirimens duhium. A doubtful impediment is one whose existence 
or non-existence can not be established by a thorough investigation. 
The impediment may be doubtful, either because the interpretatior 



6o THE CASUIST— VOL. II 

of the law which creates the impediment, is doubtful and hence it 
becomes doubtful whether any such impediment exists in law. 
This is the dubium juris. Or it may be that the law and its inter- 
pretation are quite clear, and the doubt may be about the facts in a 
particular case, whether the facts are such as to warrant the appli- 
cation of the law or not. This is the dubium facti. 

When the doubt concerns the existence of a law creating an im- 
pediment or its interpretation and application and the law be of 
ecclesiastical origin, then it is always lawful to contract a marriage, 
where such a doubtful impediment exists, because the Church sup- 
plies the defect, as Canonists say, and there is no danger of con- 
tracting an invalid marriage. This is the uniform practice in the 
Church, and the Church, cognizant of it, has never condemned it: 
therefore, constructively, the Church sanctions the practice. 

But if the doubt concern the existence of a divin-e law creating an 
impediment, as, for instance, whether the divine law forbids a 
brother and sister to marry, or if the doubt concern the facts in the 
case, as, for instance, whether Titius and Bertha are really brother 
and sister, it is not lawful to contract marriage in such a case, be- 
cause either the Church can not remove the impediment, if it be of 
divine law, or if the doubt concern the facts in the case, the Church 
does not wish to supply the defect, or rather positively refuses to 
supply it. Because the Church has held such marriages invalid, 
when, after they were contracted, it was fully established that an 
impediment did really exist. The reason why the Church does not 
permit marriages in cases where a doubtful diriment impediment 
exists, is that, generally speaking, an investigation will settle the 
doubt as to the existence or non-existence of the impediment. If, in 
any particular case, the investigation does not remove the doubt, 
then a dispensation is required, ad cautelam, because the Church 



A CASE OF THE IMPEDIMENT OF CONSANGUINITY 6i 

requires that the Sacraments be administered vahdly. If, however, 
the impediment be of the kind that the Church never dispenses, as 
in the case of Titius and Bertha, then the Church forbids the mar- 
riage, and does not grant a dispensation ad cautelam. 

Whether the law forbidding a brother and sister to marry be a 
law of nature, or only a law of the Church, theologians are not 
agreed. But in this they are agreed, that if the law be only of 
ecclesiastical origin — juris ecclesiastici — it is one of the impedi- 
ments that the Church never has and never will dispense. For all 
practical purposes, therefore, it is immaterial what may be the 
origin and nature of the impediment. In the case of Titius and 
Bertha the existence of the impediment is not altogether certain; 
but still it is sufficiently probable to render the marriage of Titius 
and Bertha a doubtful marriage, if the Church were to permit them 
to marry. 

In the case of other diriment impediments jtiris ecclesiastici, the 
Church validates the marriage, by supplying the defect, or remov- 
ing the impediment. But in the case of doubtful relationship in the 
first degree, lineae transversalis, the Church never supplies the de- 
fect, by removing the impediment, if it really exists, even though 
she may, according to some theologians, have power to remove it. 

It can readily be seen what grave inconveniences would some- 
times ensue if the Church followed any other course. Suppose the 
Church allowed Titius and Bertha to marry. It would be very 
scandalous, since all doubt as to their relationship has not been 
removed. Suppose, after their marriage, incontrovertible proof is 
produced that they are brother and sister. They will have to 
separate. The hardship of separating will be greater than the 
hardship of originally abandoning the marriage. Infinitely more 
so. And the scandal given and the harm done to religion ! 



XIII. A CASE OF RESTITUTION 

Titius tells the following incident in confession. About a year 
ago, while a neighbor's house was on fire, he did his best to save as 
much furniture and other articles from the burning house as pos- 
sible. When there was no longer any prospect of saving any more 
property, and the owner of the house was standing near Titius, he 
suddenly bethought him of a considerable sum of money that was 
still in the house, but did not dare go after it. He told Titius about 
it, saying: "Well, it goes with the rest." Thereupon Titius, taking 
a desperate chance, enters the building and secures the money at the 
risk of his life, but never lets on that he succeeded in saving it. 
The house was burned to the ground, and no one ever suspected 
for a moment that Titius has succeeded in saving the money. 
Titius felt no scruple about appropriating the money, as the owner 
had abandoned it as lost, and Titius thought he did him no damage 
in keeping it, because it would surely have been destroyed had 
not Titius saved it. Titius always thought that the money was 
lawfully his until within the last few weeks. Now his conscience 
troubles him, and as the amount was considerable, he desires to 
know what he ought to do in the matter. May he keep it, or must 
he return it? 

Answer: Titius must restore the money to the rightful owner, 
but he may retain enough to indemnify himself for the risk he 
took in saving it and for whatever other damage he may have sus- 
tained. We can easily imagine how Titius was led to form a false 
conscience regarding the money, which permitted him to keep it. 
He said to himself, the owner abandoned all claim or right to 
the money when he said : "Let it go with the rest." And it would 

62 



A CASE OF RESTITUTION 63 

have gone with the rest, that is, it would have been destroyed and 
lost to the owner had Titius not saved it. The neighbor is not 
any the poorer because Titius kept the money. Whether Titius 
saved it and kept it, or whether it was burned up, in any case it 
was lost to the owner. There is scarcely any doubt that a man 
who has not made a special study of the principles of justice and 
rights, would reason in some such way as above indicated, and thus 
become a possessor bonae fidei. However, we cannot call this 
money a res derelicta. The simple fact that it was in eminent 
danger of being destroyed, does not obliterate the original owner's 
right to it, or make it a res derelicta. Because it was in imminent 
danger of being destroyed and then was rescued from that danger 
does not transfer property rights in it, from its owner to the 
rescuer. Although it was on the point of being destroyed, it is 
still the property of its original owner, until it is destroyed or 
abandoned, and as such "res clamat domino." Eminent danger to 
property does not destroy the owner's right to the property, so that 
it becomes a res derelicta. Nor does the salvage of property that 
would otherwise be destroyed transfer the ownership of the prop- 
erty to the one who saves it. It is only when the owner does actu- 
ally abandon his property and renounces all intention of claim- 
ing it any more than it becomes a res derelicta, and consequently 
primi possedentis. In the present case it can not be assumed that 
the original and rightful owner of a large sum of money renounced 
all claim to it as soon as he realized that it was going to be destroyed, 
or would willingly consider it as belonging to anyone else but him- 
self in case it were rescued from the fire by human agency or 
through some chance of good fortune. Nor could the owner of the 
money be held guilty of acting unreasonably, in thus continuing 
to claim his property, even though he could not have saved it him- 



64 THE CASUIST— VOL. II 

self and had given it up as lost. It is still his money. The 
danger it was in has not destroyed his title to it, nor has the 
rescue of it created a new title of ownership in the rescuer. 
Therefore the money must be restored. When Titius fully real- 
izes this obligation of restitution he will commit a mortal sin if he 
does not fulfil it within a reasonable time, if he is able to do so. 

But he is not bound to restore all the money. He may retain a 
part of it to indemnify himself for the risk he took in saving it. This 
is quite reasonable and in harmony with the principles of justice. It 
is not so easy to determine the exact amount of indemnity that Titius 
is entitled to. In many countries of Europe, the amount is determined 
by statute and is generally ten per cent, of the whole amount found 
or saved. Ten per cent., therefore, we would say, let Titius retain 
as a reward for the risk he took in saving the money. It were 
very much to be desired that we had some such law, determining 
the reward for finding or saving property in the United States. 
We would even agree that Titius keep more than ten per cent, if 
he conscientiously thinks that ten per cent, does not represent the 
risk he took. Moreover, if Titius sustained any damage to his 
health or his clothing by saving this money, he is entitled to a reason- 
able indemnity for that also. 

Only in the case of food or drink do the moralists make an ex- 
ception to this general rule of restitution. "Si fur rem in certo 
periculo remanentem consumpserit eodem loco et intra idem tempus 
quo praeviderit rem apud dominum aeque perituram," he is not 
bound to make any restitution. The reason is that an article has 
no value for the owner as long as it is not removed from the 
danger of destruction. If the food or drink be removed to a 
place of safety before being consumed, then of course they recover 
their value and must be restored, quia res clamat domino. 



XIV. A WILL CASE 

A man died recently and left a will, disposing of a small estate. 
The bulk of the estate was left to his children, but a bequest of one 
thousand dollars was left to a certain charity. The will was offered 
for probate, but was declared void by the court, because it was not 
drawn according to the requirements of the law, and the man was 
adjudged to have died intestate and his estate was ordered dis- 
tributed according to law, as if he had died without making a will. 
The decree of the court, of course, canceled the thousand dollar 
bequest to the charity. Are the children, nevertheless, bound in 
conscience to comply with the known will of their father and donate 
one thousand dollars to the said charity? Or may they accept the 
decision of the court as discharging their conscience from any fur- 
ther obligation to pay this thousand dollars? These people are in 
poor circumstances, but they are conscientious Catholics, and desire 
to know what their strict duty is in this matter. 

Answer. — This case comes under the general question of how far 
the civil law binds or discharges a man's conscience in the matter 
of justice. There can be no doubt that the laws of the state may 
and do bind in conscience, independently of the fact whether the 
thing it commands or forbids is already commanded or prohibited 
by the divine or natural law. Laws made by competent authority for 
the common welfare are binding in conscience. 

This is true of the state as well as of the Church. The state is 
a competent legislative authority in civil affairs. If its laws did 
not bind in conscience, the citizens would be always at liberty to 
transgress its laws, made for the common good, whenever their 
transgression did not involve a transgression of the divine or 

65 



66 THE CASUIST-VOL. II 

natural law, and thus defeat the common welfare and circumvent 
the ends of civil society. Especially is this true of state laws con- 
cerning property rights. The civil law, creating or transferring 
or extinguishing property rights, aims at promoting the common 
welfare, and nothing affects the security of the citizens or the perma- 
nence of the state more than laws regarding property. For the 
order and security of a community it becomes necessary at times 
for the civil law to create or extinguish or transfer claims and titles 
to property. 

If the civil law, in accomplishment of this, might not bind the 
citizen's conscience, its purpose would be largely, if not wholly, 
frustrated. Just as the Church, for the promotion of the common 
good in religious matters, may make laws that bind in conscience, 
since the Church is a competent legislative authority in religion, 
so may the state, being a competent legislative authority in civil 
matters, make laws, that bind in conscience, for the promotion of 
the political and social welfare of the citizens. 

Now the common weal demands sometimes that certain juridical 
acts be declared void of any legal value whatever, because they 
work harm to society, and if the purpose of the laws can not be se- 
cured unless they place a burden on the conscience, then, since 
the common welfare demands that they be enforced, they become 
binding in conscience. Thus a husband is not permitted by law 
to deprive his wife of her legal share of his property. If he makes 
a will or a conveyance of property, thus injuring her, the law nulli- 
fies or voids his act, as being inimical to the best interests of the 
community. 

Now, if the voiding of the husband's act did not hold in con- 
science, the wife would not be allowed to vindicate her rights, and 
the law of dower would become inoperative, to the great detriment 



A WILL CASE 67 

of society. There is no doubt, therefore, that the civil law may 
wholly annul and make void, not only for courts of law, but for 
the court of conscience also, juridical acts of citizens, such as the 
conveying of property, for instance, if the common welfare de- 
mands it. In any particular case the intention of the lawmaker or 
legislature must be examined as to the value or force of formali- 
ties required by the law. 

It is generally admitted, however, by the moralists that laws of 
the state voiding certain acts and performances of private citizens 
only void them civilly, or as far as the civil courts are concerned, 
unless it can be shown that it was within the contemplation of the 
law to void the act even in the court of conscience. State laws that 
transfer or extinguish property rights demand a strict and narrow 
interpretation, because being in restraint of the citizen's liberty 
they are aliquid odiosiim, and, therefore, strictae interpretationis. 
Moreover, an act or a contract that is, by its nature, valid, must not 
be judged invalidated by the civil law, unless it is clearly the pur- 
pose of the civil law thus to invalidate it. But when a court does 
declare certain acts and performances of individuals null and void, 
then such acts and performances are void also in conscience, 
because otherwise the declaration of the court would be vain arfd 
idle, and public order and security would be put in jeopardy. 

When contracts, therefore, as for instance last wills and testa- 
ments, are declared null and void by the civil law unless certain 
legal formalities are complied with, it is a probable opinion among 
theologians, and therefore a safe opinion to follow in practise, 
that the purpose of the law is to void such last wills and testaments 
only as far as the civil courts are concerned. Therefore, the heirs 
to an estate are not bound either in law or in conscience to observe 
the provisions of a will that has been declared void by the court; 



68 THE CASUIST— VOL. II 

and they may demand legally the return of any property that was 
conveyed under the will, because by so doing they are only enforc- 
ing their rights that they enjoy under the law. But on the other 
hand a beneficiary under a will that has been declared void by the 
law need not return the bequest until the court has declared the 
bequest to have been null and void and ordered him to return it. 

In the case before us, therefore, the children of this man, whose 
will was thrown out by the court of probate, are not bound in con- 
science to give the thousand dollars to the charity designated by 
their father, because they may avail themselves of a law that is 
just and sound in principle, and made for the protection of society, 
but whose value would be destroyed if it did not bind in conscience. 
If, however, any part of the bequest had been already paid over 
to the charity, the charity could in conscience retain it until com- 
pelled by a decree of the court to return it. 



XV. LIABILITY FOR DAMAGE DONE BY ONE'S 
ANIMAL 

Is a person answerable in conscience, or in foro inferno, for 
damage done by his animal? The case is this: A. had a dog 
that repeatedly chased and killed chickens belonging to B. B. had 
complained to A. about his dog, but, as it seemed, to very little 
purpose, because the dog continued to injure and destroy B.'s 
property. Finally B. killed the dog. Now, the dog was a valuable 
animal, worth many times more than the chickens, and A. is at 
present endeavoring to recover damages in the courts. Is A. jus- 
tified in bringing suit to recover the value of the dog, or was B. 
justified in killing it? Which one of them ought to stand the loss of 
the chickens? 

Answer. — In answering the foregoing questions, the confessor 
proceeds in quite a dinerent way from the judge of a court of law, 
because, there is a very material difference between the forum 
internum and the forum externum, i. e., between the court of 
conscience and the civil law court. The decision in a case given by 
the confessor will often differ very materially from the decision 
given by a judge in a court of law. In the forum internum, or 
court of conscience, in a case like this one, it is the culpa theologica 
that counts ; in the civil courts, it is the culpa juridica, or the 
omission of the care which the law requires in the use of property 
so as not to injure others. When the confessor estimate? a man's 
responsibility for injury done by the man's animal, his first concern 
is to ascertain whether the damage done by the animal is imputable 
to its owner as a sin, that is a culpa theologica. If the damage 
done was the result of carelessness, then was the carelessness sinful f 

69 



70 THE CASUIST— VOL. II 

If there was no sin, then as far as the court of conscience, the forum 
internum, is concerned, there is no restitution to be made. The civil 
court, on the contrary, is concerned about the culpa juridica, that is 
to say, the civil judge is not concerned about the sinfulness of the 
accused's action of omission, but only about the fact of the omission 
of that care which the law requires of citizens in the use of their 
property so as not to injure others in person or property. Whether 
the omission of the proper care was sinful or not, is no concern of the 
civil court. The court endeavors to ascertain the culpa juridica, that 
is, in the present case, whether A. failed to take the care that the 
law demands that he take in the use of his property so as not to 
injure others. "Whether A. committed a sin in failing to confine 
his dog is of no consequence in the civil court, pro%-ided it can be 
shown that he failed in the care required by the law. It is the only 
thing of consequence in the forum externum. A.'s carelessness in 
keeping and using his dog may have been wholly without sin; in 
fact there may have been no real carelessness at all, but only 
what is called constructive carelessness, nevertheless the court will 
hold him liable. The general rule of the law is that a person shall 
so use his property as not to injure another in person or property. 
Where a person uses his property so as to injure others, even though 
he be not guilty of any sin or criminal carelessness in such use, still 
if he fails to take the amount of care that the law says he must take, 
then he is guilty of constructive carelessness, and is liable. It is 
irrelevant that he did not intend to do the injury, that he did not 
actually foresee it, and was not guilty of sinful or criminal negli- 
gence in not foreseeing it; the fact remains that the injury was 
inflicted because the amount of care that the law ordains that people 
must and shall take in the use of their property, was not taken, 
and therefore A. is liable. 



LIABILITY FOR DAMAGE DONE BY ONE'S ANIMAL 71 

If a case like the present one, therefore, is being tried in foro 
interna by the confessor, and no sin attaches to A.'s neglect to con- 
fine his dog, then no reparation can be required of A. in foro 
conscientiae, ante setentiam judicis; whilst, if this same case is 
argued in the civil court, the fact that injury resulted from the use 
which A. made of his dog will be prima facie evidence that A. did 
not employ such care as the law directs, and the court will so find, 
until proven otherwise. 

This rule of the law, although it may work a hardship in some 
particular instance, is just and wise and reasonable, as regards 
the whole community, because it compels persons owning prop- 
erty to use it in a reasonable and just manner so as not to injure 
others, and were it not for this disposition of the law, a great deal 
of injury would be done to life and property through carelessness 
and neglect, and the social order would be very considerably dis- 
turbed. Reparation imposed by the law for injury done to others in 
the use of one's property, is just and reasonable and must be made. 

According to the statute law, a dog is a tame animal and therefore 
the owner must know of his vicious habits to be held liable for 
damages done by him. But where the dog was upon the premises 
of another and did injury, the owner was held liable by the court, 
although without knowledge of the dog's bad habits. In case a 
dog kills or wounds sheep or lambs, the statute law makes the owner 
of the dog liable for the value of the sheep killed or wounded by the 
dog, whether the owner knew of its vicious habits or not, even 
though the sheep be at the time trespassing. This refers of course 
only to the killing of sheep or lambs. The dog's propensity to chase 
and kill such animals is so universally well known, that the law 
supposes every owner of a dog to have knowledge of it and holds 
him liable for any injury resulting therefrom. In cases where other 



72 



THE CASUIST— VOL. II 



property is injured by a dog, knowledge of the dog's vicious habit 
must be proven against its owner, before he can be held liable. 
The liability of the owner or keeper of any animal for an injury 
committed by it is founded upon negligence. Any person is justified 
by the law in killing another's dog, where the dog is dangerous or 
ugly, and his owner knew it, and the dog is found running at large 
or has been bitten by a mad dog; when it attacks one's domestic 
animals on his land, or when it attacks persons or in any way 
becomes a nuisance; when in the act of chasing, worrying or 
wounding sheep, unless such chasing, etc., be done by the direction 
or permission of the owner of the sheep, or by his servant. But no 
one has a right to shoot a dog because he has been trespassing on his 
land, although he may have put up a sign or notice on his land 
that he would do so. 

The confessor, therefore, if we may be allowed to repeat, dis- 
tinguishes between a culpa theologica and a culpa juridica. Culpa 
theologica is a real sin, either mortal or venial ; culpa juridica is the 
omission of the care which the law requires of persons in the use 
of their property so as not to injure others, whether tlie omission 
be sinful or not. Very often such omission will be sinful: then it 
becomes theologica; but it will also often happen where it is not 
sinful : then the theologians call it culpa mere juridica. The principle 
insisted on in moral theology is this : "Ut actio damnificans inducat 
obligationem restitutionis, requiritur ut sit theologice culpahilis; 
nemo enim obligatur in conscientia ad reparandum damnum, nisi 
illatum fuerit in conscientia." No one can be held liable for the 
results of involuntary actions. Now only voluntary actions can be 
sinful. If an action is not sinful, although injurious, then it is not 
voluntary qua injurious, and one can not be held answerable for the 
injury. The injury done may be voluntaria in se or else voluntaria 



LIABILITY FOR DAMAGE DONE BY ONE'S ANIMAL 



73 



at causa, or altogether involuntary. A person may intend the injury 
resulting from his action of omission or he may not intend it, but still 
foresee it as necessarily resulting from his action or omission, which 
action or omission is done for some other purpose and not to cause 
injury. In this latter case, if the injury is foreseen and no sufficient 
cause is present to justify its being allowed to happen, it is im- 
putable as sin. 

Now let us apply all this to the present case. It may be said, then, 
that it is lawful to kill another's dog if he is injuring one's property, 
but only on certain conditions. These conditions are: (i) Killing 
the dog must be the only way open to us to stop the injury. If the 
injury may be prevented by notifying the owner of the dog, etc., then 
in conscience it is not lawful to kill it; (2) the injury done by the 
dog must be a grave damnum; (3) the primary purpose of the 
killing must be the protection of one's property, and not the injury 
done to another. These conditions are required in foro interno; for 
the forum externum all that is required is proof that the care 
required by the law was or was not taken in using one's property. 

The confessor must determine whether A. was guilty of sinful 
negligence in the keeping and using of his dog. According to the 
statute law he is liable for carelessness and may be compelled to 
repair the injury resulting from such carelessness. The dog in 
killing B.'s chickens becomes a nuisance, and may be killed and 
damages recovered from A. 

But before the matter is brought into court, what is A.'s duty? 
It will depend on the nature of A.'s carelessness in keeping 
his dog. If A. was guilty of sin in being careless, then he is 
responsible in conscience for the injury done by his dog. A. 
had been notified of his dog's vicious habits and should have so 
guarded that he could not injure another's property. In neglect- 



74 THE CASUIST— VOL. U 

ing to do so, he evidently failed in his duty and committed a sin, 
and must now make reparation. 

As B. complained to A. about his animal to no purpose, and if an 
appeal to the officers of the law would have done no good, then if 
the injury that was being done by the dog was a grave damnum, 
B. was justified in conscience in killing the dog to protect his 
property. Vim vi repellere licet is an axiom of the law. Of course, 
if there had been any other less injurious way or means of pre- 
venting the injury to A.'s property, B. would have been obliged in 
conscience to adopt it. But under the circumstances there does 
not seen to have been any other way of stopping the damage. B. 
has a right to insist that A. shall so use his property as not to injure 
him, and he has a right to recover damages for the injury done. 

He has a right also to resist the suit brought by A. to recover the 
value of his dog. At the same time, if the court should fine him 
for killing the dog, he will be obliged in conscience to pay, because 
the court is a competent authority to determine the question of 
the justifiability of the killing of A.'s dog. 

In regard to A., he is bound in conscience to make restitution for 
the injury done by his animal, because he was evidently guilty of 
criminal negligence in the way he kept his dog. But if as a matter of 
fact there was no sin in his carelessness, then, ante sententiam 
judicis, he is not bound to make restitution. 



XVI. SECRET COMPENSATION 

A man working for a railroad company compensated himself 
secretly to the amount of about one hundred dollars. He did so 
at the suggestion of fellow-workmen, who convinced him that he 
was doing more work than his weekly salary paid for. Prior to 
being advanced to his present position, this man knew the nature 
of the work that would be required of him, and the long hours 
necessary to do the work. This happened several years ago. Now, 
for some months back, this man has been trying to get an increase 
of wages from the company. The matter has been taken under 
advisement by his superiors before whom such matters come for 
consideration, and they seem to have practically admitted that he 
is entitled to an increase of ten dollars per month. However, they 
have been procrastinating now for five months, and are not likely 
to give the increase until spring, because, this man says, they 
know that the winter is a bad time for a man to quit work, that 
a man can not well better himself at this time, and therefore he 
will not give up his present employment. Now, suppose that the 
time runs on long enough before they increase his wages, and the 
total amount to which he thinks himself entitled amounts to one 
hundred dollars, would this man be justified in not restoring the 
hundred dollars already taken? 

Answer. — According to the moralists very definite conditions 
must be verified before occult compensation or secretly recovering 
what one believes to be one's own, can be considered lawful in 
conscience. 

I. Ut dehitum sit venim. Our claim must be founded in strict 
justice, and not merely in gratitude for work well done, or in 
promises to remember us in one's will, etc. 

75 



76 THE CASUIST— VOL. II 

2. Ut dehitum sit certum. If there be any reasonable doubt what- 
ever that we have no strict claim in justice, then possession is nine- 
tenths of the law, i. e., the party from whom we endeavor to 
recover is in possession, and law and equity favor him, and he has 
a right to keep what he has in his possession until it shall be 
proven beyond reasonable doubt that it belongs to another. If this 
were not so, hallucinations would prove a prolific mother of thefts. 

3. Ut dehitum aliter ohtineri non possit. The public peace and 
the welfare of the social structure require that debts be collected 
through the channels created by custom and law, and only when 
these are inadequate can recourse be had to secret recovery. 

4. Ut dammmi debit oris vel tertii caveatur. We may injure the 
debtor in secretly recovering from him if we expose him to the 
danger of paying the debt twice, or leave his conscience charged 
with the debt, when in fact the debt is discharged. A third person 
may be injured by being suspected of dishonesty, etc., and thereby 
suffer loss of position or legal prosecution. 

In regard to employees the moralists say : Ultra salarium, de quo 
pactum sit, modo saltern inHmiim sit, non licet se compensare; nam 
ultra pactum, in quod ipse consensit, nil ei debetur. 

Where no fraud or deception or force has been employed, and 
the nature of the work was sufficiently understood, and the em- 
ployee was not driven by stern necessity to agree to work for a 
wage that is manifestly unjust, there can be no room for secret 
compensation. If, in the course of his employment, the work 
required of him should suddenly become more dangerous than 
could have been foreseen, or much more arduous, as, for instance, 
night work instead of day work, and the man could not very well 
get another position immediately, then he might recover secretly. 
Applying these conditions to the case before us, we are forced to 



SECRET COMPENSATION 



77 



admit that the hundred dollars that this railroad employee took 
was not a debitum verum, nor a dehitum certum, and that this em- 
ployee had no strict right, founded in justice, and beyond all rea- 
sonable doubt, to the said money. The pay that he was receiving 
from the railroad company was evidently not infra minimum, and 
if it were, he was not obliged by extreme necessity to work for it, 
since he could have found other work to do, and since he knew 
beforehand the nature of the work that was required of him and 
the wages he was to receive for it. He agreed to do the work for 
the wage of his own free will and not being constrained, and with 
full knowledge both of the labor demanded of him and the recom- 
pense promised. That was a contractus onerosus, entered into 
without fraud or deception or force, and the employee had no right 
therefore to alter its terms, without the consent of the other party 
to the contract. The hundred dollars must be restored to the rail- 
road company. It is evidently their property and res clamat 
domino. This we say in view of the first part of the case. But 
what of the second part? Before coming to the second part of the 
case we will call attention to a condition, in connection with this 
first part of this case, existing in almost every large city of the 
United States, viz. : the dishonesty of street railway employees. 
There are 3050 conductors employed on the New York City railway 
lines. In the year 1904, 3491 were discharged, of whom 3436 
were in the service less than a year. In 1905, 3019 conductors 
were discharged, of whom 2864 had been less than one year in the 
service. In 1906, 4976 conductors were discharged, of whom 4776 
had been less than a year in the service. In the first six months 
of 1907, 3265 have been discharged, of whom 3144 were in the 
service less than one year. 



78 THE CASUIST— VOL. II 

The tremendous extent to which these discharges have been for 
dishonesty or steahng is indicated by the following figures : 

Year Total discharges For dishonesty 

1904 3491 3017 

1905 3019 2448 

1906 1 4976 3924 

1907 (six months) ....... .3265 2792 

1907 (estimated) 6530 5584 

In the present year, therefore, if the average for the first six 
months is carried out, the entire force of conductors on the surface 
lines will be discharged virtually twice over for dishonesty alone. 
This means a loss to the surface railway company of New York 
City, inclusive of fares not collected, of more than ten per cent, of 
its gross income, or upward of two million dollars a year. Various 
statements of what this system of self-compensation was worth to 
individual men have been made up, but only as estimates. One 
man high up in the councils of the surface railway company said 
the other day that a former valet who was put in on the road as a 
motorman found that his share of the daily profit was from $2.00 
to $3.00 under normal conditions. Several months ago there was 
a case in the divorce courts in New York City in which the wife 
of a city railway conductor was suing for alimony, and in her bill 
charged that although her husband's salary from the tail way com- 
pany was only $18.00 a week, he ought to pay alimony on a $50.00 
a week basis, as he "knocked down" $35.00 a week on the side. 
There was a disposition to believe at first that this was an ex- 
aggeration, but subsequent investigations bore out the facts. The 
ordinary reason advanced to justify this dishonesty is that the 



SECRET COMPENSATION 79 

men are not being paid sufficient wages and therefore are obliged 
to recover secretly. On the other hand, it has been asserted in the 
investigation of traffic conditions by the Public Service Commission 
that the deficit of the New York City railway system in the fiscal 
year ending June 30, 1907, was over $3,000,000. In other words, 
although the gross receipts for the year 1906 were $21,937,943, 
there was a deficit of $2,212,997, two millions of which was caused 
by dishonest employees. So easy is it for men to persuade them- 
selves that they have a right to recover by secret compensation! 
(Cf, New York Times, November 17, 1907.) How earnest, there- 
fore, ought not the confessor to be, especially before the fact, in 
disabusing men of this false conscience. 

In regard to the second part of the railway employee's case, 
namely, would it be permitted to this man to keep this hundred 
dollars, or any portion of it, amounting to $10.00 per month, for 
the time that the railway company acknowledged that his pay 
ought to be increased $10.00 per month, but nevertheless failed to 
increase it? 

If the railroad company has really acknowledged that the work 
of this employee is worth $10.00 per month more than he is re- 
ceiving in wages for it, and if the true reason why the company 
does not increase his pay at present, is because they feel that he is 
obliged to work for them anyway, then they are taking advantage 
of his need to defraud him of what they freely confess in justice 
belongs to him and which they unjustly keep back from him, and 
therefore he might be permitted to deduct from the sum he owes 
the railroad company the sum of $10.00 for every month that the 
company fails to increase his pay since the time that they acknowl- 
edged that his wages ought to be increased to that extent. If 
the company's delay covers more than ten months, we would not 



8o THE CASUIST— VOL. II 

permit the man to resume recovering secretly, but we would advise 
him to change his employer if he thought he could not work for 
the wages he contracted for. If, however, the reason why the 
railroad company did not at this time wish to increase his pay, 
was because they could not very well afford to do so economically, 
owing to the stringency of the money market for the last four or 
five months, then we do not think that this employee would be 
allowed to reimburse himself from the money he owes the com- 
pany. In this case the company would not be taking undue ad- 
vantage of this employee's need, but would be simply refusing to 
pay more wages for a certain kind of work than they could afford 
to pay and which they could get other men to do just as well for 
the present wage, which is, we suppose, not infra minimum justum. 



XVII. EXTREME UNCTION 

A priest is called to a sick person, living a considerable distance 
from the church. The road is very heavy and the night very cold 
and stormy. When he finally arrives at the sick man's house he 
finds the sick man unconscious. He gives him conditional absolution, 
and then proceeds to anoint him, as he cannot receive Viaticum. 
But upon opening the oil stocks he discovers that instead of the 
oleum infirmorum, he has brought with him the other two oils ! 
What shall he do? It will require several hours to send to the 
church for the oil of the sick. The man may be dead before that. 
The priest quickly dispatches a messenger for the oleum infirmorum, 
and in the mean time gives the sick man Extreme Unction with 
the oil of catechumens. When the messenger returned with the 
oil of the sick, the priest repeated the Sacrament sub conditione, 
and the man expired without regaining consciousness. Was the 
Sacrament valid with the oleum catechumenorum, or was the second 
administration suh conditione necessary or even lawful ? 

Answer. — The Council of Trent defines the matter of the Sacra- 
ment of Extreme Unction to be: "Oleum ab episcopo benedictum." 
The exact words of the council are : "Ex apostolica auteni traditione, 
per manus accepta, intellexit Ecclesia materiam esse oleum ab 
episcopo benedictum" (Sess. 14). 

The oil, blessed by the bishop, is understood to be oil of olives; 
for the word used simply and without qualification has this mean- 
ing and this has been the uniform teaching and practise of the 
Church throughout the centuries. "Quia oleum principaliter nom- 
inatur olivae liquor," says St. Thomas, "cum alii liquores solum ex 
similitudine ad ipsum olei nomen accipiant, ideo oleum olivae etiam 
debet esse, quod assumitur in materia hujus sacramenti" (Suppl. 

81 



82 THE CASUIST-VOL. II 

q. 29). Pope Eugenius IV, decre. pro Armenis, says: "Quintum 
sacramentum est extrema unctio, cujus materia est oleum olivae 
per episcopum benedictum." 

"Oleum olivae idque benedictum ad unctionem extremam adhi- 
bendum esse, retinent Orientales, nisi Armenos forsan excipias, 
qui aliquando butyrum loco olei usurpasse videntur" (Denzinger, 
I, 185). Oil of olives therefore is required for the valid adminis- 
tration of the Sacrament of Extreme Unction. It is further required 
for the validity of the Sacrament that this oil of olives be blessed 
by the bishop. The w^ords of the Council of Trent are clear: 
"Intellexit Ecclesia materia esse oleum ah episcopo benedictum" 
(Sess. 14). The proposition or statement that Extreme Unction 
might be validly administered with oil that had not been previously 
blessed by the bishop, was condemned by Paul V (Jan. 13, 1655), 
as a "propositio temeraria et errori proxima," and this condemnation 
was reaffirmed by Gregory XVI, in 1842, who declared that even 
in extremest necessity a priest could not validly anoint the sick 
with the oil blessed by himself, unless authorized to bless it by the 
Supreme Pontiff. As far back as the Council of Carthage, A. D. 390, 
it was forbidden to a presbyter to bless the oil of the sick (ap. 
Gratian, c. xxvi, q. vi, c.l,). 

The Council of Hispalis (Seville), A. D. 619, also reserves the 
consecration of the sick man's oil to the bishop. In the Greek rite 
the oil is blessed by simple priests ; and there can be no doubt that 
this benediction suffices. Even in the Latin rite, the benediction 
of the oil by a simple priest is sufficient, provided the priest be 
expressly or tacitly commissioned by the Pope to bless it. "Res 
videtur exploratissima, quam nemini liceat in questionem adducere" 
are the words of Benedict XIV (de synod, dioec. 1. 8, c. 4 ). The 
Roman rule and the Western rule that now follows it, require that 



EXTREME UNCTION 83 

the oil be consecrated by the bishop, and this is required not merely 
by precept but for the validity of the Sacrament (St. Lig. n. 709). 

The oil, therefore, required for the Sacrament of Extreme 
Unction must necessarily be (i) oil of olives; (2) blessed by a 
bishop. 

Now there arises the question, and it is on this that the present 
case hinges, must the olive oil, blessed by the bishop, be blessed 
especially for this Sacrament in order to be valid, or will oil, blessed 
by the bishop for any purpose and with any form of consecration, 
suffice ? 

Upon this question the theologians do not agree. Some main- 
tain that a special blessing is required for the oil of the sick, 
that it must be blessed for this special purpose, namely for the 
annealing of the sick. Others maintain that any blessing or con- 
secration by a bishop is all that is necessary to make the oil valid 
although perhaps illicit for Extreme Unction. 

Suarez maintains that oil blessed in any way by the bishop is 
sufficient for the validity of the Sacrament, because it is still true 
to say that it is "oleum ab episcopo benedictum" (Disp. 40, g i, n. 
9). These theologians maintain that oleum ab episcopo benedictum 
is what the Council of Trent declares to be the materia valida of 
Extreme Unction, and if the council meant by oleum ab episcopo 
benedictum the special oil of the sick, i. e., oleum inHrmorum, the 
council would have so specified. 

St. Alphonsus calls this opinion probable, and in fact, both by 
reason of the external authority of the theologians that favor it, 
as well as the internal evidence on which it rests, it may be said 
to be solidly probable. 

According to this opinion, in a case of necessity, the oleum 
catechumenorum or the 5. Chrisma might be used validly for the 



84 THE CASUIST— VOL. II 

administration of Extreme Unction instead of the oleum inHnnorum, 
because both of them are oHve oil blessed by the bishop. 

But by far the greater number of theologians are against this 
opinion, and maintain that the oleum infirm arum is the only valid 
matter for the Sacrament of Extreme Unction. The oil used for 
the Sacrament of Extreme Unction, they say, must be blessed by 
the bishop for this special purpose. No other oil, even though 
blessed by the bishop, will suffice. According to them, it is useless 
to give even conditional Extreme Unction with the oil of catech- 
umens, for that is not blessed for the special purpose of annealing 
the sick. To vindicate their position, these theologians appeal to 
the general practise of the Church and to the decisions of the Roman 
Congregations, which declare that there is a strict duty to repeat 
the Sacrament of Extreme Unction, if by chance or accident it has 
been administered with any other than the oleum inHrmorum. This 
opinion, also, in the view of St. Alphonsus, is probable. 

In view therefore of this diversity of opinion among the theologians 
regarding the necessity of using only the oil of the sick in the ad- 
minstration of the Sacrament of Extreme Unction, we are obliged 
to agree that any other oil, even though blessed by the bishop, as 
for instance, oleum catechumcnorum or .S". Chrisma, is materia 
dubia for Extreme Unction and may never be used except in a case 
of grave necessity. For in the administration of the Sacraments 
it is not allowed to follow probable opinions. Pope Innocent XI 
condemned the proposition: "Non est illicitum in Sacramentis con- 
ferendis sequi opinionem probabilem de valore sacramenti, relicta 
tutiore." Hence, in case of necessity, but not otherwise. Extreme 
Unction might be adminstered conditionally with Chrism or oil of 
catechumens. If, however, the oleu)>i intirmorum can afterward 
be had, the Sacrament should be again conferred. St. Alphonsus 



EXTREME UNCTION 85 

does not make mention of a condition in repeating the Extreme 
Unction, neither does St. Charles, in ordering a repetition in case 
of mistake as to the oil, even though the oil used had been the Chrism 
or oil of catechumens. Lacroix, however, says that the Sacrament 
should be repeated in this case sub condiiione (1. VI, pars ii), and 
all recent theologians are of the same opinion (cf. Lehmkuhl II, 
570). 

In the case before us, there was a grave obligation for the priest 
to repeat the Extreme Unction with the oleum iniirmorum, sub con- 
diiione. The priest did right in giving Extreme Unction with the 
oil of catechumens, because it was a case of necessity. 

The sick man had indeed been absolved conditionally, but such 
an absolution must remain dubia, since no external sign of a con- 
fession had been made and absolution without some kind of a con- 
fession of sin, the theologians say, is dubia. But as regards Extreme 
Unction, no confession of sin is necessary, only let there be im- 
perfect contrition for sin in the heart if it be impossible to make 
a confession, then Extreme Unction gives primam gratiam, or sancti- 
fying grace, and this not per accidens, as the Holy Eucharist, but 
per se et ratione institutionis. 

The priest did right, therefore, in giving Extreme Unction with 
materia dubia in casu necessitatis, deficiente materia ccrta, but 
afterward the Sacrament must be repeated cum oleo infirmorum, to 
make it certain. 

All the more so was the priest bound sub gravi, to repeat the 
Extreme Unction, since the absolution given the sick man was 
absolutio dubia, he not having retained consciousness and not being 
absolved sacramentally beyond all reasonable doubt. 

If there were any danger of shocking any of the faithful present, 
by a repetition of Extreme Unction, the priest might obviate it 
by requesting to be left alone with the sick man for a few mo- 
ments. 



XVIII. CONCERNING A WILL CASE 

My Dear Doctor: 

In the HoMiLETic Monthly and Catechist, Vol. VIII, No. 2, page 
170, you try to solve a Casus Conscientiae, a Will Case.* Now, my dear doctor, 
I claim that nearly everything you say in that article is absolutely false. You 
say: "There can be no doubt that the laws of the State may and do bind in 
conscience." That the laws of the State may bind in conscience, transeat; 
that they do bind in conscience I deny, and I prove it. According to Moral 
Theology, lex non obligat ultra mentem legislatoris. Atqui; no State legis- 
lators ever intended to oblige any man in conscience to observe any law. 
Therefore civil laws do not oblige in conscience. Our civil lawgivers do not 
acknowledge any conscience. All our civil laws are penal laws, and no more. 
Hence any citizen is allowed to violate any law of the State without com- 
mitting a sin, for the law knows no sin. 

If the laws of the land bind in conscience, then a divorced man may marry 
a divorced woman! 

While the heirs in this case can not be compelled by law to pay the thou- 
sand dollars to charities, yet they are bound in conscience to do so, if it can 
be proven that it was the will of the father that one thousand dollars should 
be given to charities. 

Sacerdos. 

Answer. It is our constant endeavor to solve the Cases of Con- 
science appearing in the Homiletic Monthly according to the 
principles of sound CathoHc morahty, as expounded by the great 
theologians of the Catholic Church. Upon the teachings of St. 
Thomas, St. Liguori, Cajetan, Suarez, Lugo, Bellarmine, Lessius, 
etc., and not upon any notions of our own, if we have any, do we 
rely for a solution of the difficulties presented to us. We are 
aware that the solutions we give of Cases of Conscience may not 
always meet with the approval of everybody, nevertheless, they 
will be found, upon examination, to rest upon the teachings of 
some, if not all, of the great theologians, whose orthodoxy and 
learning are both above suspicion. Thus in the solution of the 

*The Case found on page 65 is referred to. 

86 



CONCERNING A WILL CASE 87 

Will Case, to which "Sacerdos," in the above communication, takes 
exception, we did but solve the Case according to the principles 
laid down by St. Thomas, 1-2, q. 96, art. 4; Suarez, de Leg. 1. Ill, 
ch. 21; Bellarmine, de membris Ecc. militantis, 1. Ill, ch. 11, etc., 
and more recently by Bouquillon, theol. fund, de lege civili, ch. i ; 
Noldin, de VII praecept. n. 137; Tanquerey, de Contract, n. 617; 
Aertnys, 1. I, tract. Ill, n. 144, etc. 

Suarez, loc. cit., treating of the power of the civil law to bind 
the conscience, says: 

"In hac re fuit sententia negans posse magistratus civiles per 
leges suas in conscientia obligare. Ita sentiunt a fortiori here- 
tici, qui negant esse in principibus veram potestatem ad leges fer- 
endas." Among Catholics, he continues, Gerson, in a work on the 
spiritual life, seems to deny the power of the civil law to bind 
the conscience, but without any good reason. Then he says : "Di- 
cendum vero est legem humanam civilem habere vim et efficaciam 
obligandi in conscientia. Haec est sententia communis Catho- 
licorum, ut videre licet in divo Thoma cum expositoribus. — i, 2, 

f" 96, art. 4, etc. Here follows a long list of theologians, whom 
teiarez quotes as justifying him in asserting that it is the com- 
^non opinion of Catholic theologians that the civil laws bind in 
conscience. Among those whom he quotes we find Soto, Bellar- 
mine, Navarrus, Salmeron, S. Antoninus, etc. Hereupon Suarez 
makes the statement that the assertion that the civil laws bind in con- 
science is de Me, or proxima fidei. "Et videtur assertio vel de fide, 
/el proxima fidei; nam fere aperte colligitur ex illo Pauli ad Ro- 
man. 12 : Qui potestati resistit, Dei ordinationi resistit: qui autem 
resistunt, sibi ipsis damnationem acquirunt. Quod de damnatione 
etiam apud Deum intelligit ibi Chrysost. horn. 23. Item additur 
ibi ratio his verbis: Dei enim minister est, unde colligitur illi esse 



88 THE CASUIST— VOL. II 

obediendum, non tantum propter iram, sed etiam propter con- 
scientiam; ac si aperte diceret, non solum propter timorem poenae, 
sed etiam propter vitandam culpam ; hoc enim in rigore significat 
particula ilia propter conscientiam, ut Ambros. Anselm. div. 
Thom. Theoc. et fere alii intellexerunt." The reason why the 
civil law binds in conscience, says Suarez, is because the legislator 
in making it acts as the minister of God, and by the power which 
he receives from God. The divine law and the natural law require 
that the laws made by legitimate rulers be obeyed. Yet, observes 
Suarez, we must not think that it is the divine law or the natural 
law that binds our conscience to obey the civil law; it is the civil 
law itself that places the burden of obedience on us. "Nee vero 
inde sequitur vel culpam illam (disobeying the civil law) esse 
proprie contra legem naturae, vel obligationem ad actum praecep- 
tum lege humana esse naturalem, quia, ut in superioribus tetigi, 
lex humana se habet ut causa proxima et secunda, quae nititur in 
lege aeterna tamquam in causa prima; effectus autem, qui proxime 
est a causa secunda, ita ut a prima non fieret, nisi per illam, 
secundae simpliciter tribuitur, et ideo ohligatio haec, etiamsi sit in 
conscientia (of obeying the civil law) simpliciter est a lege hu- 
mana." 

Suarez' eighth proposition (1. Ill, ch. 21) is this: Praedicta 
protestas est necessaria ad convenientem gubernationem reipublicae 
humanae. As the wife is bound in conscience to obey the husband, 
and the son to obey his father, and the servant his master, and the 
monk his superior, so a fortiori, is the citizen bound in conscience 
to obey the laws of the state. "Et ratio a priori est, quia guberna- 
tio sine potestate cogendi inefficax est, et facile contemnitur ; coactio 
autem sine potestate obligandi in conscientia, vel est moraliter im- 
possibilis, quia coactio justa supponit culpam, quod est valde proba- 



CONCERNING A WILL CASE 89 

bile, lit magis declarabitur in seq. et tractanda de lege poenali; vel 
certe est valde insufficiens, quia per earn non posset in multis casibus 
necessariis sufficienter reipublicae subvenire." The divine law and 
the natural law are altogether inadequate, being too indefinite and 
indeterminate for the government of a state. When the legitimate 
lawmakers, therefore, in any state, make just laws for the pro- 
tection and well-being of the state, those laws are binding in con- 
science, by virtue of the human power that made them, "ohligant 
immediate ex vi potestatis legislativac hiimanae, quae obligationem 
illam in conscientia potest addere supra obligationem legis naturalis 
vel divinae" (loc. cit.). 

Omitting the intervening chapters, we come to ch. 2y, "Utrum 
obligatio legis humanae, quoad gravitatem ejus, ex intentione legis- 
latoris pendeat." 

"Ut intelligatur punctum questionis, supponimus variis modis posse 
legislatorem se habere in f erenda lege ; primo, ut simpliciter intendat 
legem ferre circa talem materiam, et non amplius : ******* in 
primo modo sine dubio lex obligat in conscientia, quia vera lex 
natura sua habet hunc efifectum, si non excludatur; unde eo ipso 
quod intentio fertur ad veram legem, et hie eflfectus non excluditur, 
est sufficienter intentus, et efficitur per legem. Neque est semper 
necessaria formalis intentio obligandi in conscientia, vel sub mor- 
tal! ; imo vero hoc vix venit in mentem legislatoris civilis, et maxime 
in infidelibus, de quibus est eadem ratio. Idem est in voto et pro- 
missione, quia, si fiant, statim obligant in conscientia, licet promit- 
tens nihil de conscientia cogitaverit; idem ergo est in lege, neque 
est ulla ratio cur expressior intentio necessaria sit." 

We have given here a mere outline of Suarez's teaching, never- 
theless it is sufficiently clear from what we have quoted that 
Suarez maintains that the civil law may, and in fact does, bind in 



90 



THE CASUIST— VOL. II 



conscience, even though the law-giver did not think about con- 
science or an obHgation in conscience, when he made the law, and 
even though he be an infidel, and deny all conscience. 

Cardinal Bellarmine's teaching is identical with Suarez's, as may 
be seen by a reference to his treatise de membris Ecclesiae militantis, 
bk. Ill, ch. II. 

St. Thomas, 1-2, q. 96, art. 4, asks: "Is the obligation imposed 
on man by human law binding in the court of conscience?" He 
makes answer as follows: "Laws enacted by men are either just 
or unjust. If they are just, they have a binding force in the court 
of conscience from the Eternal Law, whence they are derived. 
Laws are said to be just in respect of the end, when they are or- 
dained to the general good ; in respect of the author, when the law- 
does not exceed the competence of the legislator ; and in respect of 
the form, when burdens are laid upon subjects in proportionate 
equality in order to the general good. For as one man is a part 
of a multitude, all that every man is and has belongs to the mul- 
titude, as all that every part is, is of the whole ; hence also nature 
inflicts loss on the part to save the whole. Under this considera- 
tion the laws that impose these burdens according to proportion 
are just and binding in the court of conscience, and are legal laws." 

Dr. Bouquillon, sometime professor of moral theology in the 
Catholic University at Washington, was one of the most eminent 
of modern moral theologians. In his Theologia mor. fund, de lege 
civili, 222 ss. he says: 

"Lex civilis vere moralis est, quippe quae non meram coactionem 
importat, sed ohligationem producit in conscientia et coram Deo. 
Fertur enim auctoritate a Deo communicata, nomine Dei et a Deo" 
sancitur. Sane in documentis inspiratis habemus principum po- 
testatem esse a Deo, et principes esse Dei ministros, ab ipso missos ; 



CONCERNING A IV ILL CASE 91 

proinde illis obediendum esse necessitate, propter Deum et con- 
scientiam; consequenter eos, qui principibus resistunt, ipsi Deo re- 
sistere et damnationem sibi acquirere. Sancti Patres autem unani- 
miter decent sic audiendum esse superiorem, qui est Dei vicarius, 
quomodo ipse Deus, quia obedire superiori jussit Deus, et quia 
Deus a non obtemporantibus poenas baud leves repetet. Idem recta 
ratio facile evincit: licet enim lege civili homo immediate ordinetur 
ad solum bonum temporale, mediate tamen etiam ordinatur ad 
bonum aeternum, siquidem, juxta divinam dispositionem, temporale 
aetemo subservit : ideoque ejus violatio a fine avertit." 

For every statement in the foregoing the learned author quotes 
the Scriptures and the Fathers. He proceeds : 

"Obligationem in conscientia producit lex civilis qua talis, non 
autem solum quatenus legem naturalem, divinam aut ecclesiasticam 
continet et applicat; id evidenter colligitur ex textibus allatis. 
Producit autem obligationem in conscientia lex civilis ipsa vi im- 
perii, non autem vi specialis voluntatis imperio additae; videlicet, 
ad obligationem sufficit ut superior intendat vere imperare, non 
requiritur ut expresse intendat obligationem in conscientia impo- 
nere ; haec enim necessario sequitur ex imperio ; unde immerito 
nonnulli aliquando videntur dubitare de legum civilium ohligatione 
in conscientia, eo quod moderni legislatores conscientiam, imo et 
Deum ipsum minime curent. Praeterea obligationem producit lex 
civilis ex se, propria eificacia, et independenter ab Ecclesiae appro- 
batione." 

Tanquerey, de contract, ch. i, says : 

"Potestatem civilem tales leges (invalidating contracts) condere 
posse, omnes admittunt. Tota difficultas est in definiendo quaenam 
leges civiles ita obligent. Ouando legislator id clare declaravit, 
nulla est difficultas ; sed plerique hodierni legislatores explicite de 



gz THE CASUIST— VOL. II 

morali seu natural! obligatione legum sermonem non habent; unde 
ex scopo legis questio solvi debet ; videlicet si bonum publicum pos- 
tulat ut lex habeatur ut irritans etiam ante judicis sententiam, 
statim ut invalidus haberi debet in conscientia, etc." 

In confirmation of this he refers to a decision of the Holy Office, 
given in 1873. The Italian government passed a law in 1866 re- 
quiring its creditors to accept paper money in payment, regardless 
of any previous contract to the contrary. The Holy Office was 
asked whether this law was binding in conscience; it answered, on 
January 21, 1873: "regulariter affirmative, nisi peculiares obstent 
circumstantiae" (Acta S. Sedis, t. VII, p. 211). 

Aertnys, C. S. S. R., says: "Omnis lex humana, proprie dicta 
semper et necessario obligat in conscientia saltern ad aliquid. **** 
Neque refert civiles Legislatores infideles esse, qui non curant con- 
scientiam; sufficit enim quod simpliciter obligare velint, eo ipso 
oritur obligatio in conscientia, quemadmodum docet Apost. ad Rom. 
xiii, I, 2, 5, loquens de principibus ethnicis : "Omnis anima potes- 
tatibus sublimioribus subdita sit ; non est enim potestas nisi a Deo ; 
quae autem sunt, a Deo ordinatae sunt. Itaque qui resistit potestati, 
Dei ordinationi resistit; qui autem resistunt, sibi ipsi damnationem 
acquirunt. Ideo necessitate subditi estote, non solum propter iram 
sed etiam propter conscientiam" (de legibus, c. Ill n. 144). 

Fr. Noldin, S. J., says: ''De intentione autem hall nota: sicut 
necesse non est, ut legislator explicite intendat obligationem in 
conscientia imponere, ut lex in conscientia obliget, ita necesse non 
est, ut explicite intendat obliagtionem gravem imponere, ut lex sub 
gravi obliget; sicut enim intentio obligandi in ipso usu potestatis 
legiferae contineri censetur, pari modo legislator materiam gravem 
generatim etiam sub gravi injungere velle praesumitur. Quare 



CONCERNING A WILL CASE 



93 



omnino tenendum est, etiam legislatorem infidelem condere leges 
in conscientia obligantes" (de legib. n. 137). 

These quotations might be continued indefinitely, but sufficient 
have been given to make it clear that, according to Catholic theo- 
logians, the laws of the state do, as a rule, bind in conscience, even 
though the legislators be unbelievers and infidels, and have no 
concern either about God or conscience. Indeed, from a perusal 
of these same theologians, it will appear that, instead of all modern 
civil laws being merely penal, the great body of the civil law is 
moral, i. e., binding in conscience, and that the purely penal laws 
are very few when compared to the whole body of the law. 

Among the laws of the state that bind in conscience are to be 
included many laws concerning the ownership, purchase and sale, 
etc., of property; the laws concerning the prescription of property, 
treasure trove, valuables found, certain of the laws invalidating 
contracts, and certain of the laws invalidating last wills and testa- 
ments. For example, Fr. Noldin says: "Leges civiles jura stat- 
uentes seu dominia transferentes, ordinarie ante omnem judicis 
sententiam in conscientia obligant ex justitia commutativa. Nam 
lex ab auctoritate competent! in bonum commune condita, in con- 
scientia obligat. Atqui jura, quae ad bona fortunae referuntur, 
constituunt objectum justitiae commutativae ; quare leges praecep- 
tivae, quae jura civium de bonis fortunae statuunt, ex justitia com- 
mutativa obligant" (de VII, praecept. n. 347). 

In like manner, the civil laws concerning treasure trove, invalidat- 
ing the contracts of minors, excluding certain persons from the 
benefits of a will, etc., are all binding in conscience. 

As a rule the dispositions of the civil law regarding last wdlls and 
testaments only affect the same civilly, i. e., in foro externo, ante 
judicis sententiam. "Si ergo," says Noldin, "infirmus morti proxi- 



g4 THE CASUIST— VOL. II 

mus, viva voce donet alicui legatum, donatio, quippe carens forma 
legali, informis est: ideo haeres non tenetur solvere legatum et 
solutum juridice repetere potest, quia uti potest jure, quod a lege 
ei conceditur; sed neque legatarius tenetur illud reddere, donee 
haeres irritationem donationis per judicem impetraverit" (de vi legis 
civil, n. 3). 

Fr. Aertnys, C. S. S. R., asks: "An lex indirecte irritans actum 
sive contractum temporalem, effectum sortiatur m foro conscientiae, 
ante judicis sententiam? Sententia probabilior affirmat, etc." "Ex 
dictis sequitur haeredem vel legatarium ex testamento non solemni 
posse tuta conscientia, antequam ullus possidet, accipere et retinere 
hereditatem vel legatum, quamdiu ab illo non abjudicatur ; quia 
possidet certa voluntas defuncti. Similiter haeres ah intestato 
potest tuta conscientia ejusmodi testamentum non exequi, vel im- 
pugnare, et eo expugnato per sententiam judicis, obtinere relicta a 
testatore; quia possidet jus succedendi ab intestato, et uti potest 
remedio juris" (de legibus, n. 148). 

The Will Case to which "Sacerdos" objects was solved accord- 
ing to these principles. It was a "testamentum, nullum propter legem 
civilem irritantem, ad causas profanas, cum legato pio ei inserto." 
Is such a last will and testament valid? 

The first thing to be settled is, was the charity to which the tes- 
tator desired to give one thousand dollars, a vera causa piaf 

The second question was, were there at least two witnesses 
present when the testator signified his will, or was his will in 
writing? 

Thirdly, was the beneficiary in good or bad faith? 

From the details of the Case as presented to us, we could not 
settle these questions, and even had we been able to settle them, 
it is disputed by theologians whether a last will and testament 



CONCERNING A WILL CASE 95 

ad causas profanas, containing a bequest for a pious purpose, is 
valid by reason of the pious bequest, when it is invalid for the 
lack of necessary legal formalities. (Cf. any of the older or 
more recent theologians on this point.) 

Since these things are so, we still believe that the solution of the 
Will Case here referred to was correct. 



XIX. WASHING THE CHURCH LINENS 

Father Paul, a young priest, is assigned to a parish where it is 
the practise for the sisters to wash the altar linens. Among these 
linens are the purificators and corporals. In the seminary it was 
taught that certain of the altar linens ought to be washed only by 
a man in sacred orders, and Father Paul remembers having taken 
his turn at this work after he had received subdeacon's orders. He 
desires to know whether it is only a pious practise for a man in 
sacred orders to wash the purificators and corporals, or whether 
there is any strict obligation for a priest or major-order man to 
wash them, or may they be turned over to the sisters together with 
the rest of the church linens to be washed and repaired by them. 

'Answer. I. The purificators, corporals and palls, when soiled, 
must be washed by a priest or deacon, or at least by a subdeacon. 
It is not lawful to give them to any one else, even to religious 
women, until they have been first washed, at least once, by a man 
in sacred orders. This is of strict obligation, and by no means 
a mere pious or becoming practise. 

I. The third part of the decree of Gratian, in the Corpus 
Juris Canonici, treats "de consecratione." Distinctio I, canon 40, 
prescribes how the altar linens shall be washed. "Pallas 
vero, et vela sanctuarii, si sordidata fuerint ministerio, Diaconi 
cum humilibus ministris intra sanctuarium lavent, non ejici- 
entes foras a sanctuario : et velamina Dominicae mensae ab- 
luant: ne forte pulvis Dominici corporis male decidat. Sindonem 
vero non foris abluant: et erit haec operanti peccatum, Idcirco 
intra sacrarium ministris praecipimus haec sancta cum diligentia 
custodire. Sane pelvis nova comparetur, et praeter hoc nil aliud 

90 



WASHING THE CHURCH LINENS 97 

tangat. Sed nee ipsa pelvis velis apponatur lavandis, nisi quae ad 
Dominici altaris cultum pertinent, Pallae altaris solae in ea 
laventur, et in alia, vela januarum." In this canon, therefore, it is 
commanded, and not merely recommended, that the altar linens, 
when soiled, be washed by a deacon, assisted by clerics of lesser 
degree, a Diacono cum humilihus ministris; which does not mean 
that the clerics of lesser degree than the deacon may themselves 
wash the altar linens, but that they are to assist the deacon in the 
performance of this ministry. This canon of the decree of Gratian 
contains some prescriptions that have since been abrogated by the 
general practise obtaining in the Church, Thus, for example, the 
canon ordains that the linens shall be washed within the sanctuary, 
and that they shall not be removed from the sanctuary. Also that 
the altar cloths are to be washed in the same way as the other 
linens. But the general practise of the Church, abrogating cer- 
tain of the provisions of this fortieth canon of Gratian's decree, does 
not extend to the washing of the purificators, corporals or palls, 
which must still be washed by a man in sacred orders. This ap- 
pears from repeated answers of the Congregation of Rites, Again, 
in the rite of ordination of a subdeacon, as contained in the Roman 
Pontifical, the bishop admonishes the cleric, whom he is about to 
raise to the office of subdeacon : Suhdiaconum oportet pallas altaris 
et corporalia ahliiere. According to a decision of the Congrega- 
tion of Rites, September 12, 1857, this washing of the purificators, 
corporals and palls, since it is enjoined by the Roman Pontifical on 
the subdeacon, as one of the duties of his office, may not be com- 
mitted to any persons not in sacred orders except by the Roman 
Pontiff himself. 

2. The purificators, corporals and palls must be washed hy hand, 
and not with instruments or by machinery. It is not required that 



98 THE CASUIST— VOL. II 

they should be altogether clean, when they leave the hands of the 
subdeacon, or that they should not be washed again, but neverthe- 
less, the cleansing that they receive at the hands of the subdeacon 
should be a real washing, vera ablutio. According to the rubrics 
found at the beginning of the Missal, de defectihus (tit. x, n. 12), 
the corporals, purificators and palls should be washed three times, 
and each time, according to the common opinion of the rubricists, 
in fresh water. But these two extra washings are not considered 
preceptive, but only commendable, while the first washing is of 
strict obligation. This is evident, the rubricists say, from the 
canon of the decree of Gratian, as well as from the Roman Pon- 
tifical, both of which prescribe only one washing. 

3. According to the decree of Gratian these linens are to be 
washed intra sanctuarium. The general practise of the Church, 
as well as the interpretations of the rubricists, take these words as 
meaning that these linens are not to be washed in the houses of 
the laity. 

4. The linens are to be washed in a bowl or basin reserved for 
this sole purpose, and are never to be washed with any household 
linens. The words of the canon are explicit: Sane pelvis nova 
comparetur, et praeter hoc nil aliud tangat. Sed nee ipsa pelvis 
velis apponatur lavandis, nisi quae ad Dominici altaris cultum per- 
tinent. Pallae altaris solae in ea laventur, et in alia, vela januarum. 

5. The water used at least for the first washing must be poured 
into the sacrarium, according to the canon. 

II. It is never lawful for sisters or other religious women to give 
the linens the first washing. In the office of St. Soter, as found in 
the Breviary for April 22, it is stated that the saint ordered that 
women of religious orders should not touch the altar linens. 
"Soter sancivit ne sacrae virgines vasa sacra et pallas attingerent." 



WASHING THE CHURCH LINENS 



99 



The decree of Gratian, distinctio XXIII, canon 25, says: Sacratas 
Deo foeminas, vel Monachas, sacra vasa vel sacratas pallas penes 
vos contingere et incensum circa altaria deferre, perlatum est ad 
Apostolicam Sedem : quae omnia reprehensione plena esse et vitu- 
peratione, nulli recte sapientum dubium est. Quamohrem hujus 
sanctae sedis auctoritate haec omnia vobis resecare funditus quanta 
citius poteritis censemus. Et ne pestis haec latius divulgetur, per 
omnes provincias abstergi, citissime mandamus. 

The same is gathered from the response of the Congregation of 
Rites, September 12, 1857. The Congregation was asked: "Utrum 
moniales seu piae foeminae vitam communem sub regula degentes, 
possint cum Hcentia Ordinarii abluere corporaHa, pallas et purifi- 
catoria?" The Sacred Congregation answered: Negative. 

This prohibition, however, affects only the first washing. 

It is becoming that the second and third washing also should 
be done by a man in sacred orders, but it is not obligatory. There- 
fore, after the purificators, palls and corporals have been washed 
once by a person in sacred orders, there is no prohibition against 
handing them over to the sisters or other religious women, who 
will wash them again and iron and repair them. 



XX. A MARRIAGE CASE UNDER THE NEW 
DECREE 

Titius, an assistant priest in St. Bartholomew's parish, is aroused 
from sleep in the middle of the night and called to the neighboring 
parish of St. Thaddeus to administer the last Sacraments to one 
of his parishioners, named Cajus, who is taken suddenly very ill 
while visiting there in the house of Sempronia, a woman to whom he 
was never married, but by whom he has several children. Titius 
recalls, on the way thither, that Cajus is engaged to be married to 
Tiberia, Sempronia's sister, which engagement is in writing 
and signed by Titius himself as well as by Cajus, but not by Tiberia, 
because she can not write. Now Titius has been warned quite 
severely by the pastor of St. Thaddeus against trespassing on his 
parish to administer the Sacraments or perform any other sacer- 
dotal ministry. On the other hand, Titius has received authorization 
from the assistant priest of St. Thaddeus, who is a particular friend 
of his, to administer any of the Sacraments within the parish limits 
whenever he might desire to do so. Taking note of these things, 
and not wishing to disturb his friend, the assistant priest of St. 
Thaddeus, Titius resolves to marry Cajus and Sempronia without 
more ado. He makes two small boys, one ten and the other seven 
years old, act as witnesses. They are half asleep and grumbling 
because their sleep has been disturbed. Omitting the interrogations 
and the prayers, as found in the ritual, Titius marries the pair with- 
out any ceremony, simply having them express mutually their con- 
sent to the marriage. Returning home, Titius retains the fee for 
the marriage which Cajus gave him, and records the marriage on 
the books of St. Bartholomew's parish, but neglects to make any 



A MARRIAGE CASE UNDER THE NEW DECREE loi 

entry in the baptism records. All this happened since Easter Sun- 
day, April 19, 1908, on which day the new marriage law, "Ne 
temere," of Pope Pius X, went into effect. 

Unde quaeritur : An Titius egerit temere ? 

Answer. — "Nearly thirty years ago, 1880, Leo XIII, of blessed 
memory, acclaimed to the world the famous encyclical 'Arcanum,' 
which contains a most lucid and comprehensive exposition of the 
fundamental principles of Christian marriage; and Pius X, through 
the Sacred Congregation of the Council, in order to make most 
practical these principles at the present hour, issued the decree 
*Ne temere,' which (i) changes the discipline of the Church with 
regard to 'sponsalia' (betrothal) ; (2) modifies the 'Tametsi' de- 
cree of the Council of Trent affecting clandestine nuptials: (3) pro- 
vides for a more perfect registration of marriage." (Pastoral of 
the Archbishop of New York on the new marriage law.) 

The above case falls under this new law of Pius X, and in order 
to treat it clearly and orderly, we shall consider : 

1. The sponsalia contracted by Cajus and Tiberia. 

2. The validity of the marriage between Cajus and Sempronia, 
as performed by Titius. 

5. The lazufuhiess of the said marriage. 

4. Titius' conduct in retaining the marriage fee and entering the 
marriage on the records of St. Bartholomew's church. 

I. The sponsalia contracted by Cajus and Tiberia. Since the 
Council of Trent, vera sponsalia, i. ei, a true betrothal or marriage 
engagement, produced the following results : First, it created a 
diriment impediment puhlicae honestatis, to the subsequent marriage 
of either party to the betrothal, with a blood-relative in the first 
degree, of the other ; that is to say, a man can not marry either the 
mother, sister or daughter of the woman with whom he has con- 



I02 THE CASUIST— VOL. II 

tracted vera sponsalia, nor can the woman marry validly either the 
father, brother or son of the man to whom she is betrothed. 

Secondly, vera sponsalia create an obstructive or prohibitive im- 
pediment to the marriage of either party to them with any other 
person whatsoever. Now the new marriage law does not aflfect 
these consequences of vera sponsalia at all. They remain under 
the new law just what they have been since the Council of Trent. 
But the new law does affect the sponsalia themselves, restricting 
them to a written betrothal in the presence of witnesses and signed 
by the principals and the witnesses. Heretofore any kind of be- 
trothal, verbal or written, with or without witnesses, provided only 
that it was a real and true promise of marriage, induced the above 
impediments. Henceforth a betrothal, in order to create the above 
impediments, must be: 

1. A voritten contract, signed by the parties to the contract; and 
if either, or both, can not write, the name (X) mark must be placed 
on the contract, indicating the illiteracy. 

2. The signature of one witness is sufficient if the witness be the 
ordinary of the place, or the parish priest ; but if either or both the 
parties to the contract can not write, an additional witness, who can 
write, is required to attach signature. 

3. The signature of two witnesses is essential if the ordinary of 
the place or the parish priest does not sign; these two witnesses 
need not be ecclesiastics ; they may be laymen ; in case either or 
both parties to the contract can not write, three witnesses are re- 
quired, who will attach their signatures. 

These things being so, the written betrothal that existed between 
Cajus and Tiberia was not a true betrothal within the meaning of 
the new marriage law ; first, because it did not bear even the name 
mark of Tiberia, who could not write; and, secondly, because it 



A MARRIAGE CASE UNDER THE NEW DECREE 103 

lacked the signature of an extra witness, who should have signed 
it, together with the priest, since Tiberia did not know how to write. 

Therefore, this written agreement to marry did not place any 
obstacle in the way of Cajus' marriage to Sempronia, or to any 
one else. 

II. As regards the validity of the marriage of Cajus and Sem- 
pronia, it must be borne in mind that a marriage, in order to be 
valid according to the new legislation, must be : 

1. Contracted before the ordinary or the parish priest (or a priest 
duly delegated), provided the ordinary or the parish priest has 
jurisdiction over the place where the marriage is performed. 

2. Contracted in the presence of two witnesses besides the officiat- 
ing priest. 

3. Contracted in the presence of a priest having jurisdiction, who 
assists of his own free will and without compulsion, and asks and 
receives the consent of the contracting parties. 

The question now arises, Is the assistant priest of a parish to be 
considered a parochus in respect of marriage. Yes; in missions all 
priests appointed to the universal cure of souls in any station come 
within the meaning of the term parochus. Fr. Noldin says : Nomine 
parochi intelligitur qui propria nomine curam animarum actu 
exercet, etsi ciira habitualis sit apud alium, v. g., capituluni, vel pa^ 
rochiae nondum sint canonice erectae (Mat. n. 646). 

As regards the archdiocese of New York, the Archbishop has 
ordained : 

"Every priest of this diocese (New York) havmg faculties 
can validly assist at marriage, within the limits of his ozvn parish, 
and can marry validly, within the limits of his own parish, not only 
his own parishioners, but also people from other parishes and other 
dioceses, provided there be no diriment impediment. A marriage 



I04 THE CASUIST— VOL. I J 

performed by a priest (without being duly delegated) outside the 
limits of his own parish is null and void." 

It is to be noted, continues the letter of the Archbishop of New 
York, first of all that it is not our intention to reserve to the pastors 
sole jurisdiction over marriage in their respective parishes. Every 
assistant priest, appointed to parochial work, is to exercise validly, 
in the parish to which he has been assigned, authority over marriage, 
similar to that invested in the pastor, except where, by special dele- 
gation, the pastor may receive extraordinary faculties for particular 
cases or circumstances. The assistant priests, however, will bear 
in mind that it is not becoming for them to grant authority to priests 
of other dioceses to perform the marriage ceremony in this diocese 
or to give permission to the faithful to marry outside their own 
parish or the diocese; these matters should be left to the pastors. 
The consent of the pastor is necessary that the assistant may, on 
any occasion, officiate licitly at marriage in the parish. 

It is evident from this that in the archdiocese of New York the 
assistant priests have the same jurisdiction over marriage in respect 
of its validity as the pastors. And this will undoubtedly be the 
practise in all the dioceses, because it secures the validity of the 
marriage contract, without derogating from the orderly control 
of the pastors of parishes over the marriages contracted in their 
parishes. When, therefore, the assistant priest of St. Thaddeus' 
parish granted authority to Titius to officiate at marriages within 
the limits of St. Thaddeus parish, the authorization was valid, al- 
though illicit, as against the will of the pastor of St. Thaddeus, 
and Titius could therefore assist validly at the marriage of Cajus 
and Sempronia. The papal decree says : 

"vi. The parish priest (and, therefore, the assistant priest, in 
New York diocese, at least) and the ordinary of the place may grant 



A MARRIAGE CASE UNDER THE NEW DECREE 105 

permission to another priest, specifted and certain, to assist at mar- 
riages within the Hmits of their districts." 

But apart from this, Titius was authorized to marry Cajus and 
Sempronia validly and licitly because Cajus was dangerously ill, and 
a marriage was necessary for the relief of conscience and for the 
legitimation of the offspring. To quote again the words of the 
decree : 

"vii. When danger of death is imminent, and where the parish 
priest or the ordinary of the place, or a priest delegated by either 
of these, can not be had, in order to provide for the relief of con- 
science, and should the case require it, for the legitimation of off- 
spring, marriage may be contracted, validly and licitly, before any 
priest and two witnesses." 

Titius assisted validly, therefore, and licitly at the marriage of 
Cajus and Sempronia. The assistant priests of New York diocese 
are admonished that it is not becoming for them to grant authority 
to priests of other dioceses to perform the marriage ceremony in this 
diocese, as that belongs to the pastors. If, however, they do grant 
such authorization, without the pastor's leave, it is quite valid. Nor 
is it licit for the assistant priest to officiate on any occasion at mar- 
riage in the parish without the pastor's consent. 

III. The authorization, therefore, which Titius received from 
his friend, the assistant priest of St. Thaddeus, was valid, but illicit, 
as against the will of the pastor, and if Cajus had not been danger- 
ously ill and a marriage necessary without delay, Titius would have 
committed sin in marrying Cajus and Sempronia. Under the cir- 
cumstances, however, Cajus' illness rendered the marriage ceremony 
as performed by Titius both valid and licit. 

IV. The two small boys who were pressed into service as wit- 
nesses were competent, provided they were sufficiently aroused to 



io6 THE CASUIST— VOL. II 

understand what was going on. The new marriage law prescribes 
no qualifications for the witnesses. A minor who has reached the 
age of discretion, or a non-Catholic, may be a witness. 

N. B. — In order to be licit the marriage ceremony must be per- 
formed by the pastor of the bride, and not, as heretofore, by the 
pastor of either the bride or the bridegroom. In this the new disci- 
pline differs from the old. He is considered the pastor of the bride 
in whose parish she has actually resided for one month, whether 
her intention was to remain there one month or no. Even though 
she had not resided in the parish for one month, "a. case of grave 
necessity excuses from the obligation of seeking permission from 
the pastor or ordinary of either party." 

Titius, of course, must satisfy his conscience de statu libero of 
Cajus and Sempronia ; that is, that they are free from every canonical 
impediment, and if from another diocese they must bear with 
them letters de statu libero from the competent authority. The 
marriage fee must be returned to the pastor of the place where the 
marriage is performed or to the parish priest of the contracting 
parties. Titius should have sent the names of Cajus and Sem- 
pronia and the witnesses to the pastor or assistant of St. Thaddeus 
parish, there to be entered on the marriage records. The decree says : 

"ix. After the celebration of a marriage, the parish priest, or 
he who takes his place, is to write at once in the book of marriages 
the names of the couple and of the witnesses, the place and day of 
the celebration of the marriage, and the other details, etc., and this 
even when another priest, delegated by the parish priest himself or 
by the ordinary, has assisted at the marriage." In this latter case the 
-delegated priest is bound, conjointly with the contracting parties, 
to provide that the marriage is inscribed as soon as possible in the 
prescribed books. 



A MARRIAGE CASE UNDER THE NEW DECREE 107 

It is also required by the new legislation that the marriage of 
Cajus and Sempronia be inscribed in the book of baptisms, opposite 
the record of their baptisms, and if they have been "baptized else- 
where, the parish priest who has assisted at the marriage is to 
transmit, either directly or through the episcopal curia, the an- 
nouncement of the marriage that has taken place, to the parish 
priest of the place where the person was baptized, in order that the 
marriage may be inscribed in the book of baptisms. 

"x. Parish priests who violate the rules thus far laid down 
are to be punished by their ordinaries, according to the nature and 
gravity of their transgression." (Decree of the Congregation of 
the Council on marriage. August 2, 1907.) 



XXI. A CASE OF RESTITUTION 

Mary is a servant employed in the home of Mr. Smith. From 
time to time she is commissioned by her employer to purchase cer- 
tain things for his home. He orders her to purchase them at a 
particular business house that he names, and fixes the price that she 
is to pay for them. Mary, however, purchases them at another 
business house, where she gets them cheaper, and she keeps the 
difference for herself. She justifies herself by saying that the differ- 
ence in price represents the fruit of her own industry, and, there- 
fore, belongs rightfully to her. Moreover, she claims that she is 
underpaid by her employer, and that this difference in price makes 
up the shortage in her wages. Is Mary bound to make restitution, 
either to the business house from whom she failed to make the pur- 
chases, or to her employer? 

I. Mary is not obliged to make any restitution to the firm from 
whom she failed to purchase the goods. The reason why she is 
not so bound is because she did not sin against the virtue of com- 
mutative justice in not buying the goods from that firm, and only 
commutative justice imposes an obligation of making restitution. 
It is assumed, of course, that there were no other indirect con- 
siderations or circumstances which might bring the case under the 
virtue of strict justice. For, although, after a fashion, it might 
seem that Mary did an injustice to the firm from whom she failed 
to make the purchases when she had been ordered to do so by her 
employer, in defrauding them of a just profit that they might have 
realized on the sales, nevertheless, strictly speaking, Mary did not 
do them any real injury, since they had no strict right to such profit, 
either real or personal. Neither can it be maintained that the firm 
had at least a right ad rem to the profit that they would have real- 

io8 



A CASE OF RESTITUTION 109 

ized from the sale of the goods, since that profit was intended for 
them by Mary's employer, who ordered her to purchase the goods 
from this particular firm. Because Mr. Smith ordered his servant 
Mary to purchase certain goods, at a fixed price, from a particular 
firm, it does not follow that Mr. Smith intended to convey to that 
firm a strict right to the profit resulting from such purchase and 
sale. All that follows from orders such as Mary received, is that 
the employer desires to be furnished goods to his liking, with the 
guarantee that a particular business house furnishes, and if he in- 
tends the profit to go to that particular house, still he does not, 
under ordinary circumstances, make a conveyance of strict right 
to such profits to that particular firm. We say, under ordinary cir- 
cumstances, because there may be cases in which, owing to peculiar 
circumstances, the employer might desire to convey to some par- 
ticular business house a strict right to the profits of such sales, as, 
for instance, if Mr. Smith should enter into a contract with a 
particular business house to purchase a certain line of goods from 
them, uniformly, in consideration of which agreement, the firm 
contracts to furnish the goods at a uniform price, irrespective of 
market prices at any particular time prevailing. In this case, of 
course, the firm would have a strict right to make the sales and to 
realize the profit, and Mary dare not substitute another firm with- 
out incurring an obligation of restitution, since she does a real 
injury to the firm that holds the contract with Mr. Smith, violating 
their strict rights. But apart from particular cases, and under 
ordinary circumstances, an order such as Mary received from Mr. 
Smith implies no conveyance of strict right to profits to any par- 
ticular business house, and, therefore, the transgression of such 
an order does not induce an obligation of restitution. 

2. But Mary's case stands quite dififerent, if we view it in relation 



no THE CASUIST— VOL. II 

to her employer, Mr. Smith. Mary is bound to restore the differ- 
ence in price to Mr. Smith, even though the goods that she pur- 
chased elsewhere for less money are equally as good as what she 
would have obtained at the firm designated by Mr. Smith. The 
reason is that Mary has no claim or title to the difference in price. 
The money that Mary received from her employer belongs to the 
employer until it is spent. The employer, in handing over to Mary 
a certain sum of money with which to buy goods, does not re- 
linquish to Mary his ownership of the money, but simply makes 
Mary his agent and entrusts to her his property, in as far as the 
same is necessary for the purchase of certain goods. Mary is 
obliged, both by reason of her position as agent for Mr. Smith, and 
the salary or wages that she receives, to give her labor to Mr. 
Smith, and to safeguard his interests. This is the duty of agents 
and the profits of their industry and sagacity belong to the em- 
ployer who hires them and pays them precisely for this. "Quidquid 
parcit, parcit domino." The fact that Mary would have spent all 
the money given her by her employer, had she bought the goods 
from the firm designated by Mr. Smith, without any advantage ac- 
cruing to her employer, does not change the case. The money that 
she has over is Mr. Smith's money, and res clamat domino. Mr. 
Smith has not abdicated his right to his money, or to that part of it 
which is still in the hands of his servant, nor has he conveyed any 
rights in it to Mary. It is the same as if Mary had saved the money 
from Mr. Smith's house, while the same was being destroyed by 
fire ; the saving of the money or the rescuing of property from de- 
struction by fire, does not transfer ownership of the money or prop- 
erty from the owner to the rescuer. The money belongs to the 
original owner, in this case to Mr. Smith, and must be restored to 
him. The reason that Mary urges in justification of retaining the 



A CASE OF RESTITUTION ill 

difference in price, namely, that the difference represents the fruit 
of her own industry, is hardly a valid reason. In some particular 
case we can see how it might be, but ordinarily there is no special 
industry manifested in a case like this, nor is there any extraordi- 
nary sagacity or special labor required, any more than what the 
ordinary run of servants would quickly put in evidence if it were 
just and right to profit by it. 

Nor is the other reason that Mary advances to justify her con- 
duct a good and valid reason, namely, that she is underpaid and 
the profit that she makes on her purchases makes up the balance 
of the wages that she thinks are due her. She contracted with Mr. 
Smith of her own free will to work for a certain wage, and she 
can not of her own authority increase her pay. She must keep the 
contract. If secret compensation were allowed to servants in cases 
like Mary's, the door would be opened to all kinds of stealing. 
Innocent XI was assuredly right when he condemned the following 
proposition : "Servants and domestics are allowed to take secretly 
from their employers enough to compensate them for their work if 
the same exceeds the salary they receive." 

"Famuli et famulae domesticae possunt occulte heris suis sur- 
ripere ad compensandam operam, quam majorem judicant salario 
quod recipiunt" (Prop 57, damnata ab Inno. XI). 



XXII. ABSOLVING PENITENTS WITHOUT 
ADMONITION 

A certain confessor enjoys quite a requtation for expediting mat- 
ters in the confessional. As a rule he pays no attention to the dif- 
ferent classes of penitents who approach his confessional. He 
rarely asks a question ; He allows the penitent to tell his sins without 
interruption, and then if he thinks him at all disposed, he absolves 
him immediately, without any word of instruction or admonition. 
On the vigils of great feasts, when the number of penitents is very 
great, he does not permit his penitents to make a full confession, 
but when they have told one or the other sin, he admonishes them 
to tell the rest of their sins in their next confession, and then ab- 
solves and dismisses them. He maintains that he is justified in 
acting thus, because otherwise he would never be able to hear all 
the people who come to him. To instruct or to admonish penitents 
in the confessional is not an essential part of the Sacrament of 
Penance, he says, nor is the confessor strictly bound to interrogate 
the penitent, provided the penitent confesses materiam suMcientem. 
What must be thought of his method of action? 

Answer. — The practise of this confessor is certainly blameworthy, 
because he is neglecting certain strict obligations that are binding 
on the confessor's conscience. 

First, as regards the practise of dismissing all penitents indis- 
criminately, without admonition or instruction, Benedict XIV, in 
his encyclical letter, Apostolica C onstitutio , of July 26, 1749, issued 
for the jubilee of the following year, admonishes all confessors 
that they do not discharge the obligations of their office, but, on the 
contrary, that they are guilty of mortal sin, if, while sitting in the 
sacred tribunal of Penance, they show no solicitude for their peni- 



ABSOLVING PENITENTS WITHOUT ADMONITION 113 

tents, but, without admonition or instruction, absolve them im- 
mediately they have finished the recital of their sins. The words 
of the Encyclical are as follows: 

Ut meminerint suscepti mwveris partes non implere, imo vero- 
gravioris criminis reos esse eos omnes, qui cum in sacro Poenitentiae 
tribunali resident, poenitentes audiunt, non monent, non interro- 
gant, sed expleta criminum enumeratione , ahsolutionis formatn illico 
proferunt. 

Every priest who exercises the ministry of the Sacrament of 
Penance is, according to the uniform teaching of the theologians, a 
teacher, a physician and a judge. As a teacher he is bound to in- 
struct the penitent concerning the things that are, hie et nunc, 
required for the worthy reception of the Sacrament, as well as in 
the things he ought to know, in order to be able to lead a Christian 
life. As a physician of souls, he is required to investigate the causes 
of the spiritual illness of his penitents, that is to say, the nature and 
causes of their sins, in order to apply suitable spiritual remedies in 
each and every case. And, finally, as every judge is obliged to hear 
and to study the whole case of the culprit before him, to consider 
its various phases and to weigh justly all extenuating or aggravating 
circumstances before he renders a final judgment; so likewise does 
the office of the confessor require of him, as a judge in the court 
of conscience, that he study the state of the penitent's conscience, and 
consider his dispositions and judge of his firm purpose of amend- 
ment, and then only to give or deny him absolution. Now it is 
evident that the confessor mentioned in this case does not and can 
not fulfil this threefold duty of teacher, physician and judge. His 
purpose is not to instruct and to heal and to judge ; his purpose is 
to hear and to absolve as many penitents as possible. It stands to 
reason, of course, that where the number of those desiring to con- 



114 



THE CASUIST— VOL. II 



fess is very great, and they are for the most part pious souls, who 
are accustomed to approach the sacred tribunal of Penance fre- 
quently and have at the most only venial sins to confess, and the 
confessor knows that they are sufficiently instructed concerning the 
Sacrament of Penance, and rightly disposed, it stands to reason, I 
say, that the confessor may dispatch his work expeditiously, be- 
cause such penitents do not need the spiritual care and help of the 
confessor in order to receive the Sacrament of Penance worthily 
and with profit. But to proceed in the same manner with all peni- 
tents indiscriminately, whether they be known or unknown to the 
confessor, even with the ignorant and the poorly instructed, whether 
they confess mortal sins or venial sins, is certainly not to administer 
the Sacrament of Penance as we are bound by grave obligations to 
administer it. For experience proves that there are those who 
approach this holy tribunal unprepared, who have not sufficiently 
examined their conscience, who through false shame hesitate to con- 
fess certain sins, who are lacking in true contrition, though believ- 
ing themselves contrite, because they have repeated orally the act 
of contrition. Now the prudent and careful confessor, whose earn- 
est desire is to fulfil this holy ministry validly and licitly, with fruit 
and with profit, as the Church ordains that it shall be fulfilled, will 
endeavor to discover and correct the faults and defects and short- 
comings of his penitents, by prudently questioning and instructing 
and disposing them, lest their confession be fruitless or even sacri- 
legious. If the penitent confess mortal sins, he ought to be ad- 
monished of their heineousness, in order that he may be moved to 
realize his spiritual condition and abhor his sins and take the neces- 
sary means of shunning them in the future. If such penitents be 
absolved and dismissed incontinently from the sacred tribunal with- 
out a word of admonition or advice, they will very likely consider 



ABSOLVING PENITENTS WITHOUT ADMONITION 



115 



their sins of little consequence and never come to a realization of 
the necessity of correcting them, and thus will they speedily fall 
into them again. 

Every confessor who has had experience of souls in the tribunal 
of Penance appreciates the gravity of this danger. For this very 
reason the Roman Ritual admonishes confessors to be careful to 
instruct their penitents regarding the condition of their souls, en- 
deavoring to make them realize the number and gravity of their 
sins and to dispose them to contrition and a firm purpose of 
amendment. 

"Demum, audita confessione, perpendens peccatorum, quae ille 
admisit, magnitudinem et multitudinem, pro eorum gravitate, ac 
penitentis conditione, opportune correptiones ac monitiones, prout 
opus esse viderit, paterna charitate adhibebit et ad dolor em et con- 
tritionem efhcacibus verbis adducere conabitur, atque ad vitam emen- 
dandam ac melius instituendam inducet, remediaque peccatorum 
tradet." 

The great number of penitents waiting to be heard does not excuse 
the confessor from the obligation of admonishing, correcting and 
disposing them, so that the reception of the Sacrament of Penance 
may be of benefit to them. St. Francis Xavier was accustomed to 
say that it was better to hear a few confessions, and to hear them 
well, than to hear a great many and to only half hear them. And 
St. Alfonsus says that it matters little whether there be others 
waiting to confess or whether some will be obliged to depart with- 
out being heard; for on the day of judgment the confessor will 
have to render an account of those he actually heard, and not of the 
others. 

"Parum refert, quod alii expectant aut inconfessi discedant; con- 
fessarius enim de hoc tantum, qui sibi nunc coniitetur, non vero de 



ii6 THE CASUIST— VOL. II 

aliis, in die judicii rationem reddere debet" {Praxis confess. 
n.7). 

Again it is quite blameworthy that the confessor, on the eves of 
great festivals, when the number of confessions is very great, 
should permit the penitent to confess only one or two sins and then 
absolve him, with the admonition to confess his other sins in his 
next confession. It is expressly stated in all moral theologies that 
the number of penitents desiring to be heard in confession can 
never be a valid or just reason for making only a partial con- 
fession, even though many must depart unheard and unshriven. 
Under all such circumstances a full and integral confession of all 
mortal sins is required of the penitent, sub gravi. The practise of 
absolving penitents without permitting them to confess all their 
mortal sins, because otherwise many must depart without absolu- 
tion, is expressly condemned by Pope Innocent XI, in the 59th pro- 
scribed proposition. 

"Licet sacramentaliter ahsohere, dimidiate tantum confessos, 
ratione magni concursus penitentium, qualis v. g. potest contingere 
in die magnae alicujus festivitatis vel indulgentiae." 

The reason why this proposition was condemned, says Billuart, 
is that the harm done by sending some penitents away unheard is 
not so great, as to justify a partial confession, especially when there 
is danger of absolving the unworthy, by reason of the precipitation 
with which the confessions are heard and the omission of a part of 
one's sins. 



XXIII. CONCERNING THE EXCOMMUNICATION IN- 
CURRED BY THOSE WHO INJURE THE RULERS 
OF THE CHURCH EITHER IN BODY, IN THEIR 
LIBERTY, OR, IN THEIR DIGNITY 

Sempronius, an excommunicated (vitandus) citizen, died and was 
buried in consecrated ground. The bishop, hearing of this, caused 
the body to be exhumed and reinterred in a non-consecrated ceme- 
tery. This angered the mayor of the town, who commanded that 
the bishop and his vicar-general (who was a bishop in partibus) 
should be expelled from the town. 

Titius, a friend of the mayor and at the same time hostile to the 
bishop, left no stone unturned to carry out the wishes of the mayor. 
So the bishop was compelled to fly from the episcopal city. The 
people, roused to anger by the action of the mayor, would not suffer 
him to depart from the diocese. Yet, fearful of the consequences 
if the order of the mayor was not obeyed, he retired by night to the 
residence of a neighboring bishop. The vicar-general took up his 
residence at the end of the diocese with a friend. 

Now the question is, what crime is punished by excommunica- 
tion in Part I, Article V, of the constitutions of the bull Apostolicae 
Sedis. 

The crime which merits the aforesaid penalty is the crime of 
personal sacrilege committed by the contumelious treatment of the 
officials of the Church. In the bull Apostolicae Sedis there are two 
excommunications fulminated against all who injure ecclesiastics. 
The first is contained in Article V, the second in Part II, Article II, 
Violentas manns, etc. Although the two penalties were intended 
to punish the selfsame crime, yet there is a wide difference between 
them. The first was established to safeguard the person, liberty 

117 



ii8 THE CASUIST— VOL. II 

and dignity of the hierarchy; that is of the cardinals, patriarchs, 
archbishops, bishops and apostolic legates. The other to protect 
all ecclesiastics. Again the excommunication contained in Article 
V is reserved to the Pope modo speciali; while that in Article II 
is reserved simpliciter. 

Thirdly, while the first ordinance is to be interpreted strictly ac- 
cording to the principle "odiosa sunt restringenda" the second has a 
most broad application. Accordingly the first excommunication is 
not merited by other persons or by other crimes than those specifi- 
cally designated by the article in question. Hence one who would 
kill a bishop-elect but not yet consecrated, or who would throw 
mud at a consecrated bishop, would not be affected by this canon. 
The second ordinance, on the contrary, since it contains a privilege 
which is not personal but applies rather to the clerical order, is 
designed to protect all who have received tonsure, even though 
they be excommunicated or suspended or under interdict. 

From this it is evident that it may sometimes happen that one 
may escape the excommunication fulminated in Article V and yet 
by reason of his crime be affected by the excommunication attached 
to the violation of Article II, as, for instance, would be the case 
with one, who, at the instigation of the devil, would hurl some 
mud at his bishop. 

Again it might be asked, who are affected by this excommunica- 
tion? The answer is simple — all who inflict any injury on the per- 
son, or who interfere with the liberty or dignity of the tonsured 
cleric, in other words all who maltreat those that are protected 
by the two canons in question. 

(a) Those who injure the person; that is those who kill or 
mutilate or strike such persons as are made sacred by holy tonsure. 
Would they be subjected to this penalty who plucked the hairs of a 



CONCERNING EXCOMMUNICATION 119 

bearded priest or bishop? No, for this is not mutilation in the 
proper sense, since the beard is not a member having a function 
distinct from the other parts of the body. 

(b) Those who interfere with the Hberty, either by seizing, in- 
carcerating or detaining a cleric. He, however, who seizes such an 
one and yet immediately dismisses him has escaped the condemna- 
tion of this canon. 

(c) All who with hostile intention pursue or exile the prelate 
or the cleric. So that this censure is incurred by all who pursue 
with such intent even though their wicked purpose is not realized. 
Yet it must be borne in mind that the mere pursuit, say, with inten- 
tion of terrifying, is not sufficient to bring the censure of this 
canon. It must likewise be remembered that to prevent a bishop 
from entering his allotted diocese is not the same as to exile him 
or eject him, and hence the censure is not merited in this instance. 
However, it must likewise be said that the sentence of excom- 
munication contained in Article V falls not only upon those who 
kill or mutilate directly, but in like manner and with equal severity 
upon all who command these deeds, who approve of them, or 
who render help by deed or counsel or reward for the fulfilment 
of the wicked design. 

Lastly, it may be asked, did the mayor of the town and his friend 
Titius, who aided him, fall under the ban of this censure, as con- 
tained in Article V of the Apostolicae Sedis? From one point of 
view it might seem that they did. For, by virtue of the decree of 
the mayor and the hostility of Titius, the bishop was forced to 
leave the episcopal city. Yet, on the other hand, it must not be for- 
gotten that the bishop left of his own free will. Had the mayor 
recalled his decree, even if this were done merely because of the 
uprising of the populace, he would certainly have avoided the 



I20 THE CASUIST— VOL. II 

censure. Hence since the bishop departed of his own free will and 
was not driven out by force, and since the vicar, who was likewise 
a bishop but not residing in his own diocese, did not even leave the 
diocese, we think there is room to doubt as to the incurring of the 
excommunication. Because of this we are inclined to give the 
benefit of the doubt to the mayor and to his friend Titius and pray 
that God may be as merciful to them as we are. 



XXIV. THE DESECRATION OF ALTARS 

Anselm, a priest, having discovered that the cover of the sepulcher 
of the rehcs in the high altar of his church had been broken into 
two parts, the effect of a heavy blow, though it had not been re- 
moved from its place, asked his bishop to reconsecrate the altar. 
The bishop, however, either because he was enfeebled by age and 
sickness, or because he learned that the altar-slab had two very large 
piercings, gave to the priest a portable altar-slab of almost the 
same dimensions, with which Anselm was directed to replace the 
broken cover. When Anselm found that this was somewhat too 
broad and too deep he cut a little from around its borders, and so 
from both its surfaces diminished a little of its thickness that it 
might fit into the hollow of the altar. 

Now the question is asked : 

1. When and under what circumstances did portable altars first 
come into use, and how does the Latin Church differ from the Greek 
on this subject? 

2. What conditions desecrate a fixed or movable altar, and should 
the fixed altar, in the above case, be considered desecrated ? 

3. Does the double piercing mentioned in the above case desecrate 
the altar? 

4. Does the portable altar in the above case lose its consecration? 
Answer i. — A portable altar from its very name is one that can 

be carried from one place to another. It is opposed to a fixed altar, 
which has a determined place in a church, and is secured to the floor. 
The sepulcher of the relics rests upon a small stone, variously called 
the sacred stone, altar-stone, a carrying stone, traveling altar, por- 
table altar, pilgrimage altar, for the reason that they are chiefly 
used by missionaries and those engaged in traveling and enjoy the 



122 THE CASUIST-VOL. II 

privilege of a portable altar. This altar should have sufficient space 
to hold at least the chalice and host. As to their first usage the 
well-known Martene writes as follows in his "Ancient Ecclesiastical 
Rites," Part ii, Bk. ii, Chap. 17 : 

"Besides fixed altars, there are others called portable, traveling, or 
pilgrimage altars, the origin of which according to some goes as far 
back as the eighth century. Rather, they date back to the very be- 
ginning of the Church. There can be no doubt that portable altars 
were used before fixed altars, for the reason that in the early days of 
the Church there were no temples, no permanent or fixed places for 
the sacred mysteries, but as Eusebius says, in Bk. 7, Chap. 22, quot- 
ing the words of Dionysius of Alexandria, "Any place at all, a field, 
a forest, a ship, a stable, a prison, a temple, could serve as places for 
the sacred mysteries" and because of this fact it was necessary that 
portable altars be easily carried to any one place. After the persecu- 
tions ceased and wealthy princes built magnificent Basilicas, the 
altars, which up to this period were movable, became fixed, and 
as a result traveling altars became less used. A little later, because 
of the necessity of traveling and the scarcity of fixed and conse- 
crated altars, traveling altars again came into use. Whence Ven. 
Bede says : "Daily they oflfer to God the sacrifice of the loving Vic- 
tim, carrying with them the little cups and altars each consecrated 
in turn." 

Altars or tables of this kind were made from marble, blockstone, 
porphyry, jasper, alabaster, onyx, crystal, wood, or ebony. They 
were rectangular in form and rested either on wooden tables or 
some more or less expensive foundation. 

According to the present laws of the Church portable altars must 
be made of stone ; they must contain the relics of some saint and be 
consecrated by a bishop. 



THE DESECRATION OF ALTARS 123 

Among the Greeks instead of traveling altars, Antimensia are 
used. These consist of precious linens containing the holy relics, 
anointed with sacred oil by the blessing of a bishop at a special 
Mass for that purpose. 

In the Russian Orthodox Church a temple can not be consecrated 
unless it contains at least one of these linens. 

In the Syrian Church small tables of wood may be used in place 
of the Antimensia, in case of necessity. 

Anszver 2. — Any altar, whether fixed or movable, is held to be 
desecrated if: 

1. It become broken. Now the break in itself may be serious by 
reason of the size of the fracture or serious by reason of its location, 
even though in itself the break may by no means be considerable. 

2. If the relics have been removed or even if the sepulcher has 
been opened. 

3. If the sepulcher itself has been broken or its cover, or if it has 
only been removed. 

4. If the altar slab has been entirely removed from the lower 
structure. 

5. If the upper part of the altar has been injured. Therefore, 
because of these laws the altar in the above case has been desecrated. 

Answer 3. — It is said in the above case that the altar slab had two 
large piercings. In this case the same conditions obtain that af- 
fect the altar by reason of a break. These conditions we have 
seen in the preceding question. And so I consider that the altar 
has been desecrated. 

Answer 4. — The portable altar given to Anselm, and which was 
mutilated by him in his ignorance, has become desecrated according 
to the above laws, and therefore the priest Anselm dare not cele- 
brate Mass on said altar. 



XXV. ARE INFORMAL BETROTHALS BINDING 
IN CONSCIENCE? 

Of the commentators who affirm this, Heiner expresses himself 
most clearly, and therefore his argument may here be repeated : "As 
every positive promise engenders under natural law an obligation, 
and for this reason is binding in conscience and before God, there 
can be hardly a doubt that even a secret promise to marry is, of its 
own force, binding in conscience. Although, owing to the positive 
law, such a secret promise to marry has no legal operation and can 
not be enforced pro foro externa, this fact changes nothing in the 
consequences which a promise of this kind begets by virtue of its 
existence. The law declares invalid the marriage-promise without 
formal betrothal, not, however, the promise with the intention to 
take upon one's self the obligation to enter a prospective marriage, 
even though this promise is by the legislator declared invalid. In 
conscience one party is bound to keep such a promise to the other, 
and to redeem his promise either by formal betrothal or by mar- 
riage." 

This argument can not be regarded as proving its point. An in- 
formal marriage promise is under the natural law binding, no doubt, 
but so is the informal marriage. And yet the informal marriage is 
without doubt invalid, because "owing to the positive law such 
marriage has no legal operation," it contracts no matrimonial union 
pro foro externo, and begets no marriage rights nor duties what- 
soever, thus depriving the contract of any value it may have by virtue 
of the natural law. The appeal to the natural law proves nothing 
therefore. 

On the contrary we would conclude, and we believe correctly so: 

124 



ARE INFORMAL BETROTHALS BINDING IN CONSCIENCE? 125 

If in consequence of the Church's legislation, governing the forum 
externum and internum, there ensues from the repudiation of an 
act, of itself valid according to the natural law, its nullity and inef- 
fectiveness for the forum internum, there must result, if the Church 
repudiates also the agreement to perform this act, a fortiori also 
nullity and ineffectiveness of the agreement for the forum internum 
That the Church has exercised her authority over betrothals pro 
foro interna is known to every canonist. The bond formed by the 
betrothal is, in and of itself, easily dissolved, even simply by mutual 
consent without any particular reason. It is difficult to believe that 
the words of a certain ecclesiastical law, which in all its other para- 
graphs undoubtedly does bind in the forum internum, should in its 
first paragraph, despite its plain wording, refer merely to the forum 
externum. 

One single ground might seemingly be mentioned in support of 
their claim, but none of the commentators refer to it. The first 
article says : Ea tantum sponsalia HABENTUR valida, while in the 
third article we find : Ea tantum matrinionia valida SUNT. How- 
ever, habentur and sunt are only different terms that have here the 
same meaning, for alone those betrothals made under observance of 
the lawful form are valid, because the Church repudiates the in- 
formal ones, and deprives them of all value and force. If — and in 
this all commentators are unanimous, from an informal betrothal 
not even the tides sponsalitia foUozvs, and therefore a transgression 
against the holy purity does not involve a breach of faith and a 
violation of justice (iustitia eommutativa) toward the innocent 
party, then it is difficult to perceive how there can be an obligation in 
conscience. 

The law says : ''an informal marriage promise is not a betrothal,*' 
such an informal betrothal can not therefore be a promise with the 



126 THE CASUIST— VOL. II 

intention of assuming an obligation, and can not, therefore, be of 
value and binding in conscience. The position of the commentators 
who defend the obligation incurred by informal betrothal does not 
seem consistent. Either they must concede to an informal engage- 
ment all effects pro foro interno, which proceed from the natural 
law, therefore Melitas and fides {sponsalitia or otherwise) with 
iustitia commutativa and invalidity of a subsequent betrothal stante 
priori — three grave obligations therefore, or they must admit that 
none of the effects, not even the minor obligation of Melitas, result 
for the forum internum. Vermeersch, in his excellent commentary, 
supports this view. 

Cardinal Gennari refers, moreover, to the introduction of the 
decree, where are set forth the dangers of informal betrothal, as : 
primum quidem incitamenta peccandi causamque, cur inexpertae 
puellae decipiantur, postea dissidia ac lites inextricahiles, and con- 
cludes with good reason that if informal betrothals were binding in 
conscience, all these dangers which the legislator intended to set 
aside would remain, and the legislator obviously can not intend 
this. Finally he cites from Cardinal Gasparri's work {De Matrim., 
n. 78) a decision of the Congregation for Extraordinary Ecclesiasti- 
cal Affairs. Leo XIII had ordained for so-called Latin America a 
certain written form for the validity of a betrothal, and to the ques- 
tion whether betrothals without this written form were in those coun- 
tries binding, at least in conscience, the Congregation, on January 5, 
1902, handed down the answer, confirmed by the Pope: Praedicta 
sponsalia pro neutro foro valere. 

No confessor has therefore the right to construe any obligation 
whatsoever from an informal betrothal. If a liability is incurred by 
one who has entered an informal betrothal, it can not originate from 
the betrothal (there is no betrothal), but only from some other inci- 



ARE INFORMAL BETROTHALS BINDING IN CONSCIENCES 127 

dental aspect of the act, for instance the informal betrothal may 
have been a means to deceive, or to lead into sin. 

For this reason it is important to draw the attention of the people 
to the fact that those who are not willing to make the formal declara- 
tion of betrothal are open to suspicion that they have no earnest, no 
honorable intention. The faithful should be enlightened, likewise, 
that formal betrothals are not valid if there is an impediment (except 
the one of forbidden times) and such betrothals become valid only 
upon the removal of the impediment. For that which a person 
can not do valide or licite, he can not either validly promise to do. 



XXVI. DELEGATION IN ASSISTING AT BETROTHALS 

Can the parish priest * or the bishop delegate another priest (his 
curate for instance) to assist at a betrothal, or can they have them- 
selves delegated in another parish by the parish priest there? 
Knecht and Heiner affirm this v^^ith considerable certainty, and 
Knecht applies to this the rule: Plus semper in se continet quod 
est minus, and, Cni licet quod est plus, licet utique quod est minus. 
The law, however, speaks of delegation only in cases of marriage, 
not of betrothal, and there explicitly circumscribes this faculty, 
therefore all other commentators declare against delegation at 
betrothals, and so has the 5". C. C. decided, March 28, 1908. Pro 
praxi no special difficulty is thereby offered. If he is not parish 
priest of the place where the betrothal is made the priest requested to 
assist may simply secure another witness to the act ; then the betrothal 
at all events is valid ceteris paribus. 

Is there a law or precept that betrothal must precede the marriage ? 
To this question we must evidently say no. But if two persons wish 
to become betrothed, they must observe the prescribed form. Other- 
wise a betrothal does not take place, and he who knowingly and by 
omission of the prescribed form merely pretends to become be- 
trothed, commits a deception toward the other party and is answer- 
able in foro externo and interno for the consequences of the decep- 
tion. 



♦According to decisions of the S. C. C. the term, parish priest, in the 
sense of the decree Ne temere, does not only refer to pastors in canonically 
erected parishes, but it means, where parishes have not been canonically 
erected, all priests lawfully appointed to exercise the pastorate for fixed 
districts ; the term includes, furthermore, chaplains in Army and Navy, 
within the boundaries of their lawful appointment; furthermore, adminis- 
trators and coadjutors who, for incapacitated pastors, take full charge of 
parishes ; of spiritual directors of hospitals and other institutions, only those 
who are not subject to a parish priest; and, in missionary territories, every 
priest entrusted by his lawful superior with the charge of a station or district. 

128 



XXVII. "NE TEMERE" AND CATHOLICS OF THE 
ORIENTAL RITE 

In interpreting the new decree A''^ temere there has prevailed a 
diversity of opinion as to whether the new decree binds only the 
Catholics of the Latin rite, or also those of the Oriental rite. On 
February i, 1908, the Cong. S. Concilii has decided that the new 
decree is binding only for Catholics of the Latin rite ; in regard to 
Catholics of other rites their former ecclesiastical law continues in 
force {Acta S. Sedis, 1908, p. 82 et sequ). 

The editor of the Acta S. Scdis comments anent the new decision 
that Latins living among adherents to the Oriental rite must not on 
that account consider themselves exempt from the decree Ne temere. 
The 6". Cong, de Propag. Fide is considering the advisability of 
extending the new decree to the non-Latin, rites. 



[29 



XXVIII. MARRIAGES BETWEEN LATIN AND ORIEN- 
TAL CATHOLICS, OR OF CATHOLICS WITH 
SCHISMATICS (PROTESTANTS)* 

In districts of mixed religions the following marriage cases may 
occur : 

1. One party is Latin Catholic, the other Oriental Catholic. 
The marriage may validly take place either according to the decree 

A^^^ temere or according to the law to which the Oriental Catholic is 
subject, because the marriage contract is indivisible and for the 
Oriental party applies his or her Church law. This is the opinion of 
the Roman Consultor in Acta S. Sedis, 1908, p. 83. 

2. One party is an Oriental Catholic, the other a schismatic 
(Protestant). 

Neither party is bound by the new decree Ne temere. The Ori- 
ental Catholic is exempted by reason of the decision of the 5". C. 
Concilii of February i, 1908!; the schismatic (Protestant) is as such 
not bound on account of Num. XI, paragraph 3, of the decree 
(Schismatics and Protestants are only involved when marrying a 
Latin Catholic ; Par. 2, Num. XI, of the decree, in conjunction with 
the decision of the .S. C Concilii, Feb. i, 1908). Because of the 
indivisibility of the contract an Oriental Catholic may be validly 
married to a schismatic (Protestant) either according to the Ori- 
ental Catholic, or according to the schismatic (Protestant) Church. 
This follows from the views of the Roman Consultor in Acta S. 
Sedis, 1908, page 83. 

3. One of the parties is a Latin Catholic, the other a schismatic 
(Protestant). 



* See page 137. t See page 129. 

130 



MARRIAGES BETWEEN LATIN AND ORIENTAL CATHOLICS 131 

The marriage, by force of Num. XI, Par. 2, of the decree Ne 
tcmere can only be vaHdly performed by a (any) CathoHc pastor. 
This is the opinion of the Roman Consultor in Acta S. Sedis, 1908, 
p. 85. 



XXIX. PRACTICAL MARRIAGE CASES UNDER THE 
NEW DECREE 

1. A couple resides in Parish A and desires to be married in this 
parish. 

The marriage, in the same manner as heretofore, is announced 
in Parish A and the couple are married by the parish priest* 
of A or by his delegated assistant. The parish priest, furthermore, 
may delegate any other priest to perform the ceremony at A. In 
this normal case, and the most frequent, no change has taken place 
from former usage. 

2. The man lives in Parish A, the bride in Parish B, they wish to 
be married in Parish A. 

The banns are published in A and B, as formerly. The parish 
priest of A may validly and without delegation by the parish priest of 
B perform the ceremony, but according to the new law the ceremony 
should properly take place in the parish of the bride. If a justa 
causa to marry in Parish A prevails, the parish priest of A needs no 
permission by the parish priest of B to make the marriage proper in 
A. If no justa causa is present the parish priest of A must seek the 
permission of the parish priest of B. The parish priest of A can 
then delegate any other priest to perform the ceremony at A, 

Should the couple desire to be married in A by the parish priest 
of B, then, in accordance with the new law, the parish priest 
of B must have himself delegated by the parish priest of A, because 
otherwise he can not perform the ceremony validly outside his 
parish of B. 

3. The man lives in Parish A, the bride in Parish B, they desire 
to have the ceremony performed in C. 

* The scope of the term parish priest is defined on page 128. 

132 



PRACTICAL MARRIAGE CASES UNDER THE NEW DECREE 133 

The banns are published in A and B as heretofore. The parish 
priest of C, according to the new ecclesiastical law, requires no dele- 
gation for the valid performance of the ceremony. In order that he 
may perform the ceremony licitly he must have delegation, which 
he may seek from either the parish priest of A, or from the parish 
priest of B. 

If the parish priest of A (the bridegroom's parish priest) wishes 
to perform the ceremony in C, then, in accordance with the new 
law, he would have to be delegated for that purpose by the parish 
priest of C, in order that the marriage should be valid. He requires 
no sanction to make the action licit because he is parochus proprius 
of one of the contracting parties. Of course it is proper to have an 
understanding with the Rector ecclesiae in whose church one wishes 
to perform a liturgical function; in our case, therefore, the parish 
priest of A should communicate with the parish priest of C. In my 
opinion the parish priest of A does not need delegation by the bride's 
parish priest for the reason that in Num. V, Par. 3, of the decree 
there is only prescribed licentia alterutrius contrahentis; neverthe- 
less it may be claimed in interpretation of this point that the per- 
mission of the bride's parish priest also is requisite in a locality in 
which neither of the contracting parties is resident. If this opinion 
be held then this permission also must be procured by the parish 
priest of C, if they marry in C. 

4. A couple had domicile in Parish A, but left A and settled in 
Parish B, where, three weeks after, they wish to be married. 

In this case, as in all cases of newcomers, the parish priest's (of 
B) first question must be "How long do you intend to stay in B?" 
He asks for the animus manendi, in order that he may determine 
whether the parties have in B a domicile, a quasi-domicile, or neither, 
and in the last case are vagi The results may be as follows : 



134 THE CASUIST— VOL. II 

(a) The couple reply: "We intend to stay permanently in B." 
In this case these people have at once acquired a domicilium verum. 
In accordance with the jus commune ecclesiae the banns are then 
published only in B. The parish priest of B may validly and licitly 
perform the ceremony; he requires no delegation or permission by 
the parish priest of A because he is now parochus proprius. 

(b) The couple reply: "We wish to be married here, and then as 
soon as possible remove to C." In this case there is no animus 
manendi perpetuo, therefore no actual domicile. The couple have 
not even a quasi domicilium, because they do not intend to remain 
six months at least {per majorem anni partem). Hence these parties 
are to be viewed as vagi and report is to be made to the Ordinary 
of the diocese. 

5. Man and woman reside in Parish A, they wish to be married 
in Parish B. 

According to the new law the parish priest of B requires no dele- 
gation by the parish priest of A in order to perform the marriage 
ceremony validly, but he does require permission from the parish 
priest of A. 

6. They reside in Parish A, they wish to be married by the parish 
priest of B in Parish C. 

The parish priest of B, according to the new law, must be dele- 
gated by the parish priest of C to render the marriage valid. Further- 
more the permission of the parish priest of A must be secured. 

7. The contracting parties live in Parish A, they wish to be mar- 
ried by the parish priest of B in Parish A. The parish priest of A 
has delegated the parish priest of B, with authority to sub-delegate, 
and departs on a journey. Meantime the couple have changed their 
mind and wish to be married in Parish C by the parish priest of C. 

In order that the marriage should be valid in accordance with the 



PRACTICAL MARRIAGE CASES UNDER THE NEW DECREE 135 

new law, the parish priest of C requires no delegation ; he should, 
however, for the licit performance of the ceremony, secure the per- 
mission of the parish priest of A, but as he is away from home, and 
has demonstrated by delegating the parish priest of B that he has no 
objection, the parish priest of C may perform the marriage cere- 
mony licitly by reason of this permission. A sub-delegation of the 
parish priest of C by the parish priest of B is not necessary. 

8. Bride and groom reside in Parish A, they desire to be married 
in the chapel at B, the ceremony to be performed by a related priest 
who is professor of theology at the seminary in A. 

In accordance with the new decree, the professor, in order to per- 
form the marriage ceremony validly in B, must be delegated by the 
parish priest of B ; in order that the ceremony may also be licit, 
permission of the parish priest of A must be secured either by the 
professor or by the parish priest of B. 

9. The contracting parties reside in Parish A and wish to be mar- 
ried there, the parish priest of B is to perform the ceremony (in A). 
The parish priest of B is accordingly delegated by the parish priest 
of A, The couple, however, change their plans, and are married 
without further ado in B by the parish priest of B. 

The marriage is valid according to ecclesiastical law, no matter 
what interpretation may be correct as to territorial restrictions of the 
delegation, because the parish priest of B functions validly without 
delegation as parish priest of the place. He should, however, have 
applied for the permission of the parish priest of A. It does not 
follow because he had been delegated for A that the parochus pro- 
prius was agreeable to the marriage in B. In this case the parochus 
proprius was not away from home. 

10. A couple reside in parish A, they wish to be married in B. 
The parties being befriended with the parish priest of C wish to be 



136 THE CASUIST-VOL. II 

married by him in B, provided he does not have to start on a certain 
journey before the marriage. In that case they would hke to be 
married by the parish priest of B, in B. Corresponding to the new 
law the parish priest of C must be delegated by the parish priest of 
B in order that the marriage be valid. If he leaves before the 
wedding day and the parish priest of B takes his place, the latter 
requires no delegation for the validity of the marriage because he 
is the parish priest of the place. In either case the permission of the 
parish priest of A must be obtained. 

II. The parish priest of A has no curate. A marriage is approach- 
ing when he is called away from home. In the neighboring Parish 
B there are parish priest and curate. The parish priest of A dele- 
gates the parish clergy of B cum jure subdelegandi and departs. 
Soon after the curate of B is assigned to another post, and another 
priest takes his place in B. Upon the arrival of the new curate in 
B the marriage is due to take place in A. 

In accordance with the new law the parish priest of B, by reason 
of the delegation, can validly perform the ceremony in A. But 
what about the new curate? At the time of the delegation he was 
not yet a member of the parish clergy of B, therefore a persona 
incerta. In my opinion the new curate must be subdelegated by the 
parish priest of B in order to perform the ceremony validly in A. 

Hence in places where many strangers congregate, and where 
delegations are frequent, the date of the delegation is to be closely 
considered if a change of the clergy has taken place. 

Alois Schmoger, D.D. 



XXX. MIXED MARRIAGES UNDER THE NEW 
DECREE* 

In discussing mixed marriages the law that prevailed before 
August 2, 1907, must be considered, because if a conversion of one 
or both parties has taken place after the marriage, the validity of 
the union is to be judged in accordance with the old law if the 
marriage took place before Easter, 1908. 

Those non-Catholics who, according to the decree Ne temere, do 
not need the Catholic form for the validity of their marriage, do not 
even seem to require it for its lazvf illness, because it is said in Num. 
XI, Par. 3, of the decree: Nullihi ligantur ad Catholicam matri- 
monii formam. If in the following discussion briefly the presence of 
the Catholic parish priest is demanded, let it be understood that 
there must be also at least two witnesses present. 

(a) Catholics and Protestants (schismatics). 

Under mixed marriages, in the actual and usual meaning, are 
understood unions between Catholics and Protestants (schismatics). 
If no impediment prevails and the lawful form was observed, such 
marriage without dispensation is valid, but unlawful. In regard to 
the question whether the Tridentine form (Catholic parish priest and 
two witnesses) was required for valid marriage, there had to be dis- 
tinguished (before the A^^ temere) two cases : 

(aa) In Tridentine territory mixed marriages without Catholic 
parish priest and witnesses were invalid. 

(bb) For certain countries, either disputed territory or difficulties 
prevailing, papal decrees had created special conditions ; so, for in- 
stance, for Hungary and Germany. 

(cc) In territories where Tametsi had not been promulgated, or 
♦ See also page 130. 

»37 



138 THE CASUIST— VOL. II 

was not in force, marriages between Catholics and Protestants 
(schismatics) were vahd, but unlawful. 

After the decree Ne temere the distinction between Tridentine and 
non-Tridentine territory disappears. The law is now : Marriages 
between Catholics and Protestants (schismatics), in order to be 
valid, must be contracted before a (any) Catholic parish priest (or 
Bishop) and at least two witnesses. Such marriages are still valid 
without this prescribed form in a territory for which the Apostolic 
See has decreed special laws. Hence, for instance, the special law 
referred to remains in force for Germany notwithstanding the new 
law, Num. XI, Par. 2, of the decree of August 2, 1907. 

In accordance with the jus commune ccclcsiae, the proper form 
of assisting at mixed marriages by a Catholic parish priest was 
passive assistance, even when dispensation has been obtained. This 
passive assistance has received by the new decree an important 
moderation, which makes requisite for the validity of the marriage 
the requirere of the consent (Num. IV, Par. 3, of the decree). 
Hence in my opinion the passive assistance will hereafter merely 
mean omission of the ceremonies, avoidance of the locus sacer and 
of ecclesiastical vestments. 

(b) Catholics and Apostates. 

Apostasy is the complete abandonment of the Christian faith, 
v/hether or not there is joined to it the embracing of Judaism, 
paganism or any other form of cult; he also is an apostate who, 
after falling away from Christianity, joins no other community, 
but, without following any particular religion, lives as Deist, Atheist, 
Pantheist, or Free Thinker (Aichner, Compend. Jur. Eccles., 1890, 
p. 774). At all events an apostate can be only one who has been 
validly baptized as Catholic, Protestant, or schismatic Christian. By 
the word apostate is usually understood only one who was a Catho- 



MIXED MARRIAGES UNDER THE NEW DECREE 139 

lie ; but the term would likewise hold good in the case of one who 
left another Christian community. It is erroneous to use the word 
apostate in the instance of a Catholic who embraces Protestantism ; 
the correct term in such a case is heretic. 

Marriages between Catholics and apostates were under the old 
Church law dealt with the same as those between Catholics and 
Protestants, The new decree makes distinction between apostates 
who before their apostasy were Catholics, and those who previously 
were Protestants (schismatics). The marriage between a Catholic 
and an apostate from Catholicism, in order to be valid, must, in 
every case and everywhere, be performed before a Catholic parish 
priest; the form of this marriage is in regard to its validity subject 
to the same requirements as marriages among Catholics (Num. XI, 
Par. I, of the decree) ; dispensation is necessary for its lawfulness. 

On the other hand a marriage between a Catholic and an apostate 
from Protestantism is governed by the rules for mixed marriages, 
hence in places where such provision has been made by special laws 
of the Church, it can be validly contracted even without a Catholic 
parish priest (Num. XI, Par. 2, of the decree). 

A person originally heretic or schismatic, then converted to the 
Catholic religion, and finally turned apostate, is to be treated like an 
apostate from Catholicism, hence his or her marriage with a Catholic 
is to be dealt with the same as a marriage between Catholics (Num. 
XI, Par. I, of the decree). Dispensation is referred to above. 

(c) Protestants and Apostates. 

Inquiry into the validity of marriage between Protestants and 
apostates will be in order for the Catholic priest if one, or both, par- 
ties, after the marriage, join the Catholic Church. We omit here 
to take into account the question of validity of a Protestant baptfsm. 

Marriages between Protestants and apostates were, under former 



I40 THE CASUIST— VOL. II 

rules, treated the same as marriages between heretics (Protestants). 
The decree Ne temere makes, here again, the distinction between 
apostates from Catholicism and such from Protestantism (schism). 
A marriage between a Protestant and an apostate from Catholicism 
is regarded similar to a mixed marriage between Catholics and 
Protestants and to be valid must therefore be performed before a 
Catholic parish priest (except in exempted territories) (Num. XI, 
Par. 2, of the decree). The marriage of a Protestant with an apos- 
tate from Protestantism is valid everywhere without regard to the 
presence of a Catholic parish priest (Num. XI, Par. 3, of the decree). 

(d) Catholics and Jezvs. 

A marriage between Catholic and Jew does not come, according 
to Canon Law, under the head of a mixed marriage in its technical 
sense, but is classed as a marriage between baptized and unbaptized. 
Without a dispensation not only would such a union be unlaivfiil, 
but even invalid, on account of the impediment disparitatis cultus. 

Before the decree Ne temere it was a mooted point whether or not 
the Tridentine form was requisite for the marriage between Catholic 
and Jew. Many canonists held that, as the Jew was not bound by 
the laws of the Tridentine Council, his or her exemption would be 
shared by the Catholic party to the marriage, and therefore such 
marriage would be valid even without a Catholic priest, provided 
the Church had previously dispensed from the impedimentum dis- 
paritatis cultus. 

By the new law of August 2, 1907, marriages between Catholics 
and Jews are viewed like mixed marriages, therefore the ceremony 
in order to be valid is to be performed before a Catholic parish 
priest (for certain exempted districts exceptions are made) (Num. 
XI, Par. 2, of the decree). 

The manner of performing the ceremony would be, as in mixed 



MIXED MARRIAGES UNDER THE NEW DECREE 



141 



marriages and in accordance with the jus commune (regardless of 
the secured dispensation) the passive assistance in its technical 
sense {Acta S. Scdis, 1907, p. 571). Our remarks above, about the 
moderation by the new law of this passive assistance in the case of 
mixed marriages, will also apply here. Commonly there hardly ever 
occur dispensations ante matrimonmm in such cases ; they do occur, 
however, for the validation of a civil marriage, or, on the deathbed, 
of a concubinate. 

(e) Protestants and Jezvs. 

As in other instances of marriages among non-Catholics the ques- 
tion of validity may come up if after the ceremony one or both 
parties enter the Catholic Church. In accordance with the previous 
law a marriage between Jew and Protestant could be validly 
entered, without regard to the Catholic priest, in all those cases 
where the Protestant party was not bound by the Tridentine form. 
But even if the Protestant party was bound, many canonists claim 
that the exempt Jew would impart to the Protestant party his ex- 
emption. 

The decree Ne temcre demands for the marriage between Protest- 
ant and Jew in no case and nowhere the presence of a Catholic 
parish priest (Num. XI, Par. 3, of the decree). 

In facto such marriages will be invalid, nevertheless, because of 
the impediment disparitatis ciiltus. 

(f) Apostates and Jezvs. 

An apostate, according to former Canon Law, was treated in 
regard to the form of marriage the same as a heretic (Protestant), 
hence the same regulations, which heretofore governed marriages 
between Protestants and Jews, applied also to alliances between apos- 
tates and Jews. Whether the apostate before his apostasy was 
Catholic or Protestant made no difference according to the old law. 



142 THE CASUIST— VOL. II 

The new decree makes again a distinction between apostates 
from Catholicism and such from Protestantism. The former can 
be vaHdly married to Jews only before a Catholic parish priest (ex- 
cept in exempted territories) (Num. XI, Par. 2, of the decree). 
Apostates from Protestantism can, always and everywhere, be 
validly married to Hebrews without a Catholic parish priest (Num. 
XI, Par. 3, of the decree). The impediment of disparitatis ciiltus 
applies here and hence such marriages are invalid in facto, a dis- 
pensation not having taken place. 

(g) Catholics and Infidels. 

Here is to be ascertained, first of all, whether the infidel party was 
formerly either a Catholic, a Protestant (schismatic), Hebrew, or 
has grown up from childhood without Baptism and religion. The 
previous law treated an infidel who was formerly Catholic or Protest- 
ant in the same way as a heretic, and marriages therefore between 
a Catholic and a baptized infidel were classed with marriages be- 
tween Catholics and Protestants. The infidel formerly a Jew, and 
those from childhood without Baptism and religion, were viewed 
as unbaptized, and to these the same rules applied as in marriages 
between Catholics and Jews. 

The papal decree of August 2, 1907, deals more rigidly with the 
iiifidel formerly a Catholic than with others. IMarriages between 
Catholics and Catholics become infidels are only valid, everywhere, 
when performed before a Catholic parish priest (Num. XI, Par. i, 
of the decree). The impediments are to be considered. A dispensa- 
tion is necessary for lawful marriage. Catholics and other infidels 
(who were not Catholics) can as a rule only be validly married be- 
fore a Catholic parish priest, special laws for certain localities and 
territories allowing of exceptions (Num. XI, Par, 2, of the decree). 
The impediments are of course not to be overlooked. 



MIXED MARRIAGES UNDER THE NEW DECREE 143 

(h) Protestants and InUdels. 

Before the decree Ne temere an infidel formerly a Catholic was 
viewed in regard to marriage the same as a heretic. Hence in 
regard to the form of marriage, alliances of Protestants with infidels 
who had previously been either Catholic or Protestants were classed 
with marriages among heretics, and to marriages between Protest- 
ants and unbaptized infidels the same rule was applicable as to mar- 
riages between Protestants and Jews. 

The new law discriminates also in this case against the infidel who 
has been a Catholic. A marriage between such an infidel and a 
Protestant can as a rule be validly performed only before a Catholic 
parish priest, but in certain exempt districts and localities the 
validity of such marriage is recognized by Rome also without the 
assistance of a Catholic priest (Num. XI, Par. 3, of the decree). 
The impediment of disparitas cultiis between baptized and unbap- 
tized would have to be removed. 

(i) Jezvs and Infidels. 

In the sense of the old law a marriage between a Jew and an 
infidel who had been Catholic or Protestant, was classed with the 
marriage between Jew and Protestant. The marriage of a Jew 
with an unbaptized infidel was, as a marriage between unbaptized, 
not bound by ecclesiastical law and was valid always and every- 
where without a Catholic priest. 

The new law has again a separate regulation for the infidel for- 
merly a Catholic. Unions between Jews and infidels formerly 
Catholics are valid only when the ceremony is performed before a 
Catholic parish priest (subject to territorial exemptions) (Num. XI, 
Par. 2, of the decree). Jews and infidels other than former Catholics 
can enter into a valid union everywhere without a Catholic priest 
(Num. XI, Par. 3, of the decree). The impediment of disparitas 
ciiltus is to be removed. 

Alois Schmoger, D.D. 



XXXI. THE VALIDITY OF MARRIAGES AMONG NON- 
CATHOLICS OF THE SAME DENOMINATION 

While the priest has nothing to do with the marriage ceremony 
in such cases, he will have to inquire into the validity of such unions 
if one or both parties after their marriage adopt the Catholic faith. 
For this inquiry he must regard not only the new decree A^^ temere, 
but sometimes the previous law. 

If such a marriage was entered before Easter, 1908, its validity is 
to be judged according to the older law. 

When in the following the assistance of a Catholic parish priest 
is required it is to be understood to mean parish priest and at least 
two witnesses. 

I. Marriage among Protestants (schismatics). Before the de- 
cree Ne temere the following distinctions were made : 

(a) In non-Tridentine territories such marriages were undoubt- 
edly valid regardless of the attendance of a Catholic priest. 

(b) For certain districts special laws have been promulgated (so 
for Hungary, Belgium, Holland, Germany), which made such 
marriages valid, but unlawful. 

(c) For Tridentine territory marriages entered by two Protestants 
are variously viewed by canonists, who are not agreed as to whether 
the presence of the Catholic parish priest was necessary for their 
validity or not. The Roman canonists and Congregations declare 
themselves for the necessity of the Tridentine form in the case of 
such marriages. 

The decree Ne temere puts an end to all doubts by deciding that 
marriages among Protestants (schismatics) may after Easter, 1908, 
be validly contracted throughout the world without a Catholic priest. 

144 



THE VALIDITY OF MARRIAGES AMONG NON-CATHOLICS 145 

It no longer seems to require the assistance of a Catholic priest even 
for lawfulness, because it says nullihi ligantur ad catholicam matri- 
monii formam." 

2. Marriages among Jews (unbaptized). 

Ecclesia non judicat de iis, qui foris sunt. Jews who marry Jews 
were bound invariably by the jus naturae and divinum only, and 
never by Canon Law. Hence at no time Jews and unbaptized were 
bound by the Tridentine form of marriage, not even in Tridentine 
territory. Also under the new decree they marry validly and law- 
fully without parish priest and two witnesses (Num. XI, Par. 3, of 
the decree). Heathens, Mohammedans, in brief all unbaptized are 
in reference to the marriage laws classed with Jews. 

3. Marriages among apostates. 

Apostates are former Catholics or Protestants (schismatics) who 
have renounced their Christian faith; whether they have embraced 
another form of religion, or whether they live as free thinkers, is 
immaterial for the technical appellation. According to the former 
law apostates (without distinction as to whether they had formerly 
been Catholics or Protestants) were considered by the marriage 
laws the same as heretics. Therefore marriages of apostates were 
subject to the (above mentioned) regulations concerning marriages 
among Protestants. A distinction was made between Tridentine and 
non-Tridentine territory. 

The new law is toward former Catholics more severe than toward 
apostate Protestants. If two apostate Catholics marry, their mar- 
riage can everywhere only be validly contracted before a Catholic 
parish priest (Num. XI, Par, i, of the decree). If two apostate 
Protestants enter into matrimony the union is valid and lawful with- 
out a Catholic priest (Num. XI, Par. 3, of the decree). Should an 
apostate Catholic desire to wed an apostate Protestant, then as a 



146 THE CASUIST— VOL. II 

rule a valid ceremony can take place only before a Catholic priest; 
exception being made only for exempted places (Num. XI, Par. 2, 
of the decree). 

What if such persons present themselves before a Catholic parish 
priest to be married? What is he to do? The impediment of 
religio mixta is not present, for in that regard both parties are 
regarded as heretics. Neither is there the impedimentum dispari- 
tatis cultus. The ratio dubitandi is in this case really only, (a) the 
excommunication, of the candidates for Matrimony, preventing the 
reception of a Sacrament of the living, and, (b) the co-operation 
of the priest at an unlawful wedding of this kind. Hence the priest 
will endeavor first of all to reclaim the apostate persons for the true 
religion, that they may be absolved from the censure. Should this 
be futile, then he must lay the case before his Bishop. Pope Pius 
VI in a similar case gives to the ordinary instructions to apply to 
Rome (Aichner, Conip. Jur. Eccl., 1890, p. 666, nota 28). The case 
is really analogous to the marrying of impenitent candidates whom 
the priest tries in vain to bring to a proper frame of mind. Hence 
the Bishop could in my opinion, in an urgent case, even give of his 
own authority the decision warranted by the circumstances. 

4. Marriages among infidels. 

Three kinds of infidels may here be distinguished: Those who 
formerly were Catholics, those who were Protestants (schismatics), 
and, former Jews or persons from childhood without Baptism and 
religion. 

If both infidel parties are former Catholics, their marriage before 
the decree A^^ temere was regarded the same as the union of two 
Protestants ; the new law regards the marriage only as valid, every- 
where, if performed before a Catholic priest (Num. XI, Par. i, of 
the decree). When two infidels, former Protestants, marry, the 



THE VALIDITY OF MARRIAGES AMONG NON-CATHOLICS 147 

old law likewise regarded them the same as Protestants, Corre- 
sponding to the new decree they can validly and lawfully marry 
everywhere without a Catholic priest (Num. XI, Par. 3, of the 
decree). 

Two unbaptized infidels could formerly, and can now, be validly 
and lawfully married without a Catholic priest (Num. XI, Par. 3, of 
the decree). 

An infidel who has been a Catholic, married to an infidel formerly 
a Protestant, are according to the older law regarded the same as 
Protestants. Under the decree A^^ temere they can only be validly 
married before a Catholic priest, except in exempted places (Num. 
XI, Par. 2, of the decree). The impediment of religio mixta is not 
present here because both are regarded as heretics ; neither of course 
the impediment disparitatis cultiis. 

If a former Catholic, now infidel, wishes to wed an unbaptized 
infidel party, the former Canon Law regarded it the same as a 
marriage between Protestant and Jew. The new law requires for 
the validity of the ceremony that it shall take place before a Catholic 
parish priest except in exempted places (Num. XI, Par. 2, of the 
decree). In this case the impediment disparitatis ciiltns is not to be 
overlooked. 

The marriage between an infidel, former Protestant, and an un- 
baptized infidel was by the older rule regarded the same as a mar- 
riage between Protestant and Jew. The new decree allows their 
union as valid everywhere without a Catholic parish priest (Num. 
XI, Par. 3, of the decree), provided the impediment of disparitas 
cultiis has been removed. 

Should infidels who formerly were Catholics or Protestants come 
to a Catholic parish priest to be married, our remarks above, under 
marriages of apostates, about such a contingency would also apply 
in this case. Alois Schmoger, D.D. 



XXXII. MARRIAGE IN DANGER OF DEATH 

The Roman decree Ne temere, of August 2, 1907, brings about a 
moderation in the form of the marriage consent declared in immi- 
nente mortis periculo (Num. VII, of the decree). The term death- 
bed marriage would no longer cover such a case. The decree does 
not speak of dangerously ill, such as, for instance, is the require- 
ment for Extreme Unction. Periculum mortis may be present even 
without illness, in the case of those, for example, who are con- 
demned to death, of soldiers before battle, of shipwrecked, in time 
of persecution when Catholics are threatened with death. 

Before the decree A''^ temere, Canon Law knew of no universally 
valid moderation of the Tridentine form prescribed in danger of 
death. Even in periculo mortis a marriage was only valid if con- 
tracted before the parochus proprius and at least two witnesses. On 
February 20, 1888, however, exception was made by Pope Leo XIII 
for aegroti (not therefore for shipwrecked, etc.), in danger of 
death, if there was no longer time to apply to Rome, but only in 
these two instances, namely : i. In the event of a civil marriage, and 
2. In the case of concubinage. For other cases (the case, for 
instance, of repairing the reputation of a woman with whom the 
man now in danger of death does not live) the exemption does not 
apply. In these two cases, then, the diocesan ordinary can dispense 
from all impediments to marriage (excepto prebyteratus Ordine et 
afUnitate lineae rectae ex copula licita proveniente) ; with faculty to 
delegate a parish priest, an assistant or other priest. According to 
the decision of the S. Cong. Officii, of December 13, 1899, the ordi- 
nary on the strength of these exceptions can dispense even from the 
impediment of clandestinity {Acta S. Sed., 1899-1900, p. 500; 1907, 

148 



MARRIAGE IN DANGER OF DEATH 149 

pp. 546 and 547). Thus the ordinary is empowered in such cases to 
dispense through any priest to the effect that a couple may be vaHdly 
married without the presence of parish priest and witnesses. This 
decree of Leo XIII is not superseded by the decree Ne temere, 
because Num. VII of the new decree of Pius X is a lex generalis, 
but the decree of Leo XIII a lex specialis. Lex generalis non 
derogat speciali. Other exemptions from the form of marriage con- 
sent in danger of death did not exist before Easter, 1908. 

The new decree of Pius X effected, after Easter 1908, a uni- 
versally valid moderation in the form of marriage in danger of 
death, in so far as the marriage is valid and lawful if it takes place 
before any (Catholic) priest and two witnesses. Thus the parish 
priest of the domicile (parochus proprius), or the parish priest of 
the place where the marriage is entered, are not required to assist, 
not even a parish priest. Any priest, may he be curate, chaplain, 
professor of theology, spiritual director, etc., may perform such a 
marriage ceremony validly and lawfully. Without witnesses, how- 
ever, the priest alone assisting, the marriage would be both invalid 
and unlawful; it would be so also before two witnesses without a 
priest. That witnesses are required absolutely and invariably is 
wisely ordained by the Church, as in such cases, with publicity ex- 
cluded, a partly unconscious, dying patient might often, and for very 
questionable reasons, be hurriedly married to some one (Acta S. 
Sed., 1907, p. 573). Furthermore the precept is calculated to pro- 
tect the priest against charges of unbecoming conduct, or of undue 
influence. Witnesses are easily obtainable, the nurses for instance. 
The provision that any priest may be chosen is no doubt made 
because such a marriage may be resolved upon when a priest is 
there to administer the last Sacraments, during a sick call of the 
priest, on occasion of a visit by a befriended priest, or in an emer- 



ISO THE CASUIST— VOL. II 

gency case in hospital or prison when the chaplain but not the parish 
priest is within call, etc. 

In order, however, that such a marriage in danger of death be 
valid and lawful the following conditions are provided : 

1. There must be lack of time to apply for delegation to the 
ordinary or to the parish priest, or to summon them or a delegated 
priest (the curate for instance). If time permits of securing dele- 
gation from the ordinary, or to summon the parish priest or his 
delegate, then such a marriage performed by another priest would 
be invalid and unlawful. 

2. The ceremony must be desired to set at peace the conscience 
{ad consulendum conscientiae) and (if there are pre-nuptial chil- 
dren) to legitimize the children. Ad consulendum conscientiae 
will apply usually in cases of civil marriage or of concubinage. 
Unfortunately it is not stated in the decree whose conscience may be 
appeased. Does it apply only to the conscience of the dying person 
(or one in danger), or has a priest the right to proceed if it is only 
a question of the peace of conscience of the (healthy) mistress of 
one in danger, or the peace of conscience of respectable parents who 
urge to have matters settled? The peace of conscience referred to 
is probably that of the dying, or one in danger, because the approach- 
ing step into eternity makes him fearful and he has not much time 
to put things in order ; the other persons are only threatened in their 
reputation or material welfare. The decree manifests solicitude for 
the children, not for other relatives. The danger of financial loss 
or impairment of honor is not mentioned in the decree as sufficient 
reason for a facilitation of the marriage form. 

Regard for peace of conscience, and therewith the validity and 
lawfulness of the facilitated form are absent, if the one in danger is 
not disposed to contrition or penance (an irreligious person for 



MARRIAGE IN DANGER OF DEATH 151 

instance whose conscience does not much trouble him) : In such case 
the marriage could not take place before a casual priest unless it 
were for the legitimizing of children. When it is only a question of 
legitimizing children, but not of appeasing the conscience of the 
one in danger, one might doubt according to the strict wording of 
the decree whether a casual priest could perform the ceremony, be- 
cause it says ad consulendum conscientiae ET (not vel) prolis 
legitimationi. In my opinion the et has here, as in frequent other 
instances, the same meaning as vel, because it would not be just to 
let the children suffer for the father's indifference, and the decree 
manifests special solicitude for the children. What is to be done 
when concern is had only for a legacy, material advantage, reputa- 
tion of the persons not in danger, or in a case of insistence by rela- 
tives, in brief, when the purpose has nothing in common with peace 
of conscience or the legitimizing of children? In such cases it 
would seem that a casual priest cannot validly and lawfully perform 
the ceremony. Solicitude for peace of conscience will not be a 
valid reason, either, when the case is one of an existing marriage, 
which is invalid on account of a secret impediment, if this fact is not 
known to the one in danger and can not be communicated to him (in 
which case the children are legitimate). Ad consulendum conscien- 
tiae would, furthermore, not furnish a valid reason if the one in 
danger by means of the facilitated form simply wished to hurry the 
matter unnecessarily, or, on account of personal antipathy, did not 
wish to be married by the parish priest or his assistant, or for any 
other similar unworthy reason. 

The new decree does not exclusively mention the two cases : 
Validation of a civil marriage or of a concubinage. Other cases 
may be presumed, in which a dying person (one in danger) wishes 
to set his conscience at rest by a marriage, for instance a person feels 



152 THE CASUIST— VOL. II 

impelled by conscience (in consequence perhaps of an admonition 
by the Confcssarius) to marry the person whom he has seduced, 
from whom he lives apart and who has borne him no children ; or 
he has become engaged honorably and wishes to carry out his 
promise on his deathbed, or the one in danger wishes to make a 
certain restitution by marrying. 

In the decree Ne temere it is not required that the marriage in the 
facilitated form, in cases of danger of death, must be performed 
secretly, i. c, with two confidential witnesses and excluding all pub- 
licity. Secrecy or publicity is left to the priest's good judgment. 

Of marriage banns in such cases the decree makes no mention. 
If, in so urgent a case, the priest had to apply first of all for dispensa- 
tion, the facilitated form would become illusory, because parish 
priest or assistant might just as quickly be summoned, or a delega- 
tion from the ordinary obtained. 

The regulations concerning the marriage in danger of death find 
application also in cases of mixed marriages (Catholics and Protest^ 
ants), or of marriages of apostate Catholics. In these cases the 
stipulation concerning the Catholic education of the children must 
not be overlooked (Num. XI, Par. i and 2, of the decree). 

If the decree of Leo XIII, of February 29, 1888, is still in force, 
along with the decree of Pius X, of August 2, 1907, what distinc- 
tion is to be made in corresponding cases? 

The distinction is as follows : 

1. The decree of Pius X is a universal one and applicable for 
every kind of danger of death, therefore, for instance, also for ship- 
wrecked and for criminals sentenced to death ; that of Leo XIII is a 
special one and applicable only to the sick. 

2. Pius X decrees regardless of impediments ; Leo XIII refers to 



MARRIAGE IN DANGER OF DEATH 



153 



cases in which an impediment is present and a dispensation neces- 
sary, 

3. Leo XIII decreed only for the legaHzing of a civil marriage 
or a concubinage (therefore, for instance, not including the case of 
one who wishes to marry a seduced person living apart from him) ; 
the decree of Pius X has for its general purpose the appeasing of 
the conscience and legitimizing of children. 

4. Leo XIII speaks of gravissimum mortis pcriciilum; the decree 
of Pius X is less restricted and ordains for imminente mortis peri- 
ciilo. 

5. Leo XIII makes it a condition that there is not sufficient time 
to apply to Rome; Pius X requires only that, if possible, the ordi- 
nary or parish priest be summoned. 

6. Leo XIII renders possible (by dispensation from the impedi- 
ment of clandestinity) a marriage even without priest and without 
witnesses ; Pius X prescribes for the validity and lawfulness at 
least a priest and two witnesses. 

7. In order that a priest may avail himself of the decree of Leo 
XIII (to grant dispensation) he must be delegated by the ordinary; 
in order to assist at the marriage according to the new decree of 
Pius X no episcopal authorization is necessary, because just 
those cases are intended in which there is no time to apply for dele- 
gation. Therefore, if in a marriage in danger of death an impedi- 
ment to marriage were present (for example relationship), then 
both decrees are applicable : The casual priest must apply to the ordi- 
nary for a dispensation from the impediment, otherwise the mar- 
riage would be invalid on account of the existing obstacle; and the 
local parish priest must be beyond reach, otherwise the marriage 
would be invalid on account of the form (unless the priest, to whom 



154 THE CASUIST-VOL. II 

is granted the faculty of dispensation, is by the ordinary at the same 
time delegated to perform the marriage). 

A Roman Consultor of the Cong. S. Concilii remarks in his opin- 
ion on the new decree : "Hacc matrimonii celebratio in extremis non 
videtur absolute requiri ad salutem" {Acta S. Sed., 1907, p. 574). 
The decree itself does not say matrimonium contrahi DEBET, but 
POTEST. 

Alois Schmoger, D.D. 



XXXIII. MARRIAGES IN CASES OF EMERGENCY 

In cases of emergency, as distinguished from cases in danger of 
death, the Hfe of either of the candidates for a marriage is not in 
danger. The emergency is found in the general impossibiHty in a 
certain district, province, or country, to have the marriage per- 
formed by a parish priest. 

Even before the decree Ne temere (of August 2, 1907), various 
Roman decisions, and interpretations of canonists, had occupied 
themselves with the question as to what was to be done in a case 
when the parochus proprius could not be had to perform a marriage 
ceremony (Gasparri, De Matrim., 1893, II, n. 965 et sequ. ; Santi, 
Praelect. Juris. Con., 1886, lib. IV, tit. Ill, n. 47 et 48; Aichner, 
Compend. Jur. Eccles., 1890, p. 661). 

The following rules had been adopted: 

1. If the Catholic parish priest is not obtainable for the marriage 
ceremony the parties can give their consent validly and lawfully 
before two witnesses (without parish priest, even without any 
priest), provided, i. That the emergency must be a universal one 
(namely for the whole region, not a personal only for the couple). 
The emergency does not have to be a physical one, a moral one 
suffices. The latter would be the case, if the parish priest can only 
be had diHHcillime and periculosissime (not difficile or periailose) ; 
so Pius VI to the Bishop of Geneva, October 25, 1793. Circumstances 
like the presence of an impediment, or the personal infirmity of one 
of the contracting parties, do not constitute of themselves cases of 
emergency; nor the fact that one or more parish priests refuse to 
assist. 

2. This emergency must be expected to last at least for a month 

155 



156 THE CASUIST— VOL. II 

so that the couple would have to postpone their marriage for a 
month at least (not merely for a few days or weeks). 

3. That the parochiis proprius or his delegate (curate or assist- 
ant) is not to be had. 

4. Also the delegation (even by letter) of another priest by the 
ordinary is not possible. 

All these four conditions must prevail together, not merely one or 
the other. If, for instance, in cases of emergency the delegation of 
a priest by the bishop is possible, then the couple can not be married 
merely before two witnesses and without a priest. 

Even if in such cases a civil marriage, or a marriage before a 
Protestant minister are possible, Catholics can nevertheless marry 
validly and lawfully before merely two witnesses (without an of- 
ficial or clergyman), because the Catholic Church attributes no sacra- 
mental effect to the two forms mentioned. A declaration of consent 
merely between man and woman without witnesses would even in 
case of emergency be invalid and unlawful. Witnesses must be 
present. A case where no witnesses can be had is hardly possible, 
because even seven-year-old children, or women, or relatives, even 
the unbaptized, etc., may be valid witnesses. 

In such a case of emergency a publication of the banns is of course 
out of the question. 

The decree Ne temere, in Num. VIII, has simply assembled the 
law as expressed in the different Roman decisions and interpreta- 
tions by canonists. But three new conditions have been added, 
namely : 

1. The case of emergency is now present only when no Catholic 
parish priest can be had (formerly parochiis proprius). 

2. The contracting parties must formally declare their consent 
{formalis consensus) ; a. tacit consent does not suffice. The declara- 



MARRIAGES IN CASES OF EMERGENCY 157 

tion no doubt can take place not only by words, but also by signs, 
otherwise deaf mutes or the dumb could not marry. 

3. The emergency must at least have lasted a month (conditio a 
mcnse jam persevcret). These rules apply also to mixed marriages 
and marriages with apostates (Num. XI, Par. i and 2, of the de- 
cree) . 

Kindred cases of emergency may occur in times of persecution, 
or in a Kulturkampf, in times of war ; in widely extended missionary 
districts, etc. 

Alois Schmoger, D.D. 



XXXIV. ARSON AND RESTITUTION 

Catharine, the wife of Andrew, set fire to their house, unknown 
to Andrew. When the latter learned of the true state of affairs he 
did collect the insurance of $i,ooo, but threw the money down before 
his wife, saying angrily : "Here, take this unrighteous money if you 
will. I want none of it." Andrew troubled himself no further about 
this money, and Catharine died several years after, fortified by the 
last Sacraments. Some years after Andrew also falls ill. The 
incendiary fire and the money collected, for the use of which he 
can not account, weigh heavily upon his conscience. Part of the 
amount he can refund, but not the entire sum, without interfering 
with his children's yet unfinished education and without rendering 
impossible their further study for the professions. Is he obliged 
to make restitution, and of the whole sum, or may he presume 
that his late wife put the affair in order ? 

Answer. The money taken by Andrew belonged to others, and 
was not his due, because the fire insurance companies do not agree 
to pay damages directly caused by the insured, or by his wife, or 
by his near relative. All rightful claim to insurance money is 
absent, also in conscience, if malevolence, or grievous theological 
guilt, has caused the fire. 

To the money accepted by Andrew adheres, therefore, the obliga- 
tion of restitution. Although Andrew, in order to protect himself 
and his wife from the greater evil of public dishonor and against 
severe punishment by the authorities, was allowed to take the money, 
he could only do so with the intention of refunding the money as 
soon as possible to its rightful owner. The basis and extent of the 
obligation to make restitution is in general, and can only be for 

158 



ARSON AND RESTITUTION 159 

Andrew, i. Unlawful injurious action, or 2. Unlawful acquisition 
of another's property. It is evident that both these conditions ex- 
isted in regard to Catharine. But here it is not a question of 
Catharine's obligation to make restitution, but of Andrew's, and in 
this regard the answer will vary according to the circumstances, 
which have to be ascertained. We have to decide the case on the 
following suppositions : 

I. First of all let us suppose that the money was applied for the 
benefit of Andrew's family ; in such case it is incumbent upon 
Andrew to refund the money, because he has been unlawfully en- 
riched by it, as it went to pay expenditures which otherwise would 
have had to come out of his own income. 

The obligation of restitution would, furthermore, be Andrew's, no 
matter how the money had been used, if he, with grave theological 
guilt, has put the money in other hands than the owner's, with the 
knowledge that Catharine would not make the restitution. 

Should one or the other of these suppositions be a fact, then the 
obligation of restitution rests, or rested, upon Andrew. We say 
the obligation rests or rested, for there is a possibility that it no 
longer rests with him, because, at least in part, restitution may have 
been made already. In order to decide this we must first consider 
the question : To whom must the money be refunded ? Compare in 
this connection the author's Theologia Moralis, ed. 9, a. I, n. 1134. 
It is a practical probability that not the shareholders of insurance 
companies, but rather the great number who insure with them their 
belongings, by payment of yearly premiums, are the actual sufferers, 
because the companies include in their calculation of premiums the 
average cases of arson which yearly take place. From this follows 
the further practical probability that, instead of to the great number 
of insured, the restitution may, as a rule, be made to the poor or to 



i6o THE CASUIST— VOL. II 

some charity; for where the amount to be refunded would be 
divided among so large a number, especially if the individuals are 
not all known, and the individuals have not been injured in a grave 
materia, then, according to the general opinion of theologians, the 
restitution can for prudent reasons be made to the poor or to some 
charitable purpose, because on the one hand we may presume this 
to be the reasonable will of the insured, and because on the other 
hand the poor and the public charities are that part of human society, 
to whom the superfluity of temporal goods, or the portion of no 
avail to the actual owner, is due (Compare Liguori, I. 3, n. 589 
and 595). 

If restitution to the poor, or to some charity, is lawful in Andrew's 
case, it follows that Andrew, by alms and other donations made by 
him since the incendiary fire, or rather since collecting the insurance 
money, has already refunded part of this money. 

This is the first ground to reduce the amount which Andrew is 
obliged to refund. 

A second ground for a reduction may perhaps be found in An- 
drew's circumstances, which make the money needful for the further 
education of his children. If one of them has chosen the priesthood 
for his vocation, or some other calling similarly to the welfare of 
mankind, the furnishing of the means for such vocation, and for 
the preparation therefor, is a pious purpose, such as we have said 
can, in our case, take the place of restitution to the creditors. Al- 
though it is advisable that of a debt arising from an obligation of 
restitution the entire sum should not remain in the debtor's family, 
on the claim of poverty or causa pia, but that an outside causa pia 
should be preferred, yet under such title at least a considerable por- 
tion of the money may remain in the debtor's possession. 

For these reasons alone, the money still to be made good, even if 



ARSON AND RESTITUTION i6i 

Catharine has not made restitution and if Andrew is a culpable ac- 
cessory, may be reduced to at least one-half, and in case of need to 
less. 

II. It is, however, quite possible that our supposition, of An- 
drew's theological guilt and of the expenditure of the money for 
the benefit of the family, is not a fact. One would suppose that it 
could not have escaped the husband's notice if the money had been 
really expended for the family or for household needs. There is 
of course the possibility that the wife alone had these matters in 
hand, the husband having relinquished his control over them. Then 
the matter would remain in doubt. A circumstance seemingly in 
favor of the opinion that restitution had been made — or an applica- 
tion of the money equal to restitution — is that Catharine died forti- 
fied with the last Sacraments, and had said nothing before her death 
to her husband of being burdened with the duty of restitution. A 
difficulty to do this was not present in this case, Andrew being aware 
of the wife's act upon which the obligation of restitution rested. 
Still there is no certainty, and a mere possibility could hardly suffice 
for a complete exoneration of Andrew. Yet it will be permissible 
for this reason to make a still further reduction of the obligation 
and of the sum to be refunded, in the supposition of Andrew's 
theological guilt. 

In conclusion it remains to inquire about Andrew's theological 
guilt or non-guilt. We have remarked above that no theological 
guilt can attach to Andrew because he took the money ; he was com- 
pelled to do so to prevent greater evil to himself and to his wife. 
There would have ensued the theological sin of injustice had he 
appropriated the money as his own property. That this evidently 
was not his intention, is shown by his action directly afterward, 
when he declared he would have none of it. Of course, having 



i62 THE CASUIST-VOL. II 

received the property of another — having, as it were, taken it in his 
keeping — there devolved upon him, viewed objectively, the obhga- 
tion to care for its rightful use. This he neglected to do, having 
left the matter to his wife and to her conscience. Nevertheless there 
is no proof that Andrew saw a grievous fault therein, or that he was 
conscious of his responsibility for the use of the money. If An- 
drew had not much judgment in matters of law he may have be- 
lieved that he had thrown ofif all responsibility when he delivered the 
money to the one who in the first place bore both the guilt and the 
obligation to make restitution. Andrew's conscience should there- 
fore be examined. If his bona fides is proved, then he is to be 
absolved from all obligation of restitution, unless it is proved that 
the money was applied for the family's use ; in the case of mala 
fides, or, if it is shown that the money was used for the family, 
restitution would have to be made, but in the reduced degree as 
explained above. 

Aug. Lehmkuhl, S.J. 



XXXV. MARRIAGE BY COMPULSION 

Illicit relations with Caius, a gentleman of high standing, have 
not remained without consequences for Amelia. For the sake of 
his own reputation Caius urges Amelia to marry Brutus, for whom 
she does not care ; eventually, however, she does marry Brutus. Is 
this marriage valid? What grounds are there for and against its 
validity ? 

In this case the question arises whether the impediment of com- 
pulsion invalidates this marriage. To answer this is not an easy 
matter, owing to the lack of an exact account of the circumstances. 
First of all we must presume that AmeHa gave actual consent. 
Should her aversion for Brutus have moved her to give only pre- 
tended consent at the marriage, no doubt could exist that the 
marriage is invalid. We presume then that she gave her consent ; it 
was, however, induced by fear. Now Impedimentum Metus invali- 
dates the marriage if the fear is great, unjust, and caused for the 
purpose of entering the marriage. By unjust it is understood that 
it must have been occasioned by another person. For the fear that 
arises only from one's inner self, ab intrinseco, does not make a con- 
tract invalid, so long as there exists sufficient deliberation. Ab 
intrinseco is the fear that proceeds from the matter itself, and not 
from the person who threatens. D'Annibale, I, n. 138, well expresses 
it thus : "Diciter ah intrinseco, cum res ipsa metiim facit; ab extrin- 
seco: cum alius infert metuni ad conscnsum extorquendum." Hence 
not only is the fear of an illness, the symptoms of which we observe 
in ourselves, ah intrinseco, but also the fear of infection, the fear of 
a thunderstorm, of a storm at sea, of hell-fire, etc. Fear such as 
this may move us to do things which we do not like to do, never- 

163 



i64 THE CASUIST— VOL. II 

theless it leaves our power of determination quite intact, we do 
something, and will to do it, although with an effort. If, however, 
the fear is due to the threat of another person, then a certain ex- 
terior compulsion is present, which, though it leaves us freedom of 
will and deliberation, induces an action which is not so much dictated 
by our will as by the pressure upon us. Hence Alexander II says, 
in De Sponsalibus: "Cum locum non habet consensus, ubi metus vel 
coactio intercedit, necesse est, ut ubi consensus cujusdam requiritur, 
coactionis materia repellatur." When, however, there is metus ab 
intrinseco, then he decides for the validity of the act, for instance, 
De Regularibus, c. 17. 

Hence it is evident that the impedimcntum metus imposed by the 
Church applies only to the fear of a threat if it is unjust, i. If no 
just claim exists for the marriage, and 2. If the evil threatened can 
not justly be inflicted. Therefore if a bride forces her tardy be- 
trothed, by threats of legal action, to marry her, she is justified in so 
doing; also if a judge gives the seducer of a young girl the choice 
to marry her, or to go to prison, the resulting fear is just, and does 
not, therefore, render the induced consent invalid. 

Let us now solve our present casus. A marriage between Amelia 
and Caius apparently is out of the question, either because of in- 
equality of station or because Caius is already a married man 
(there is no mention of social injury resulting for Amelia from her 
relations with Caius). Therefore a love for Caius is not the reason 
for her aversion to Brutus. Caius urges or, as is understood here, 
compels, Amelia to a hasty marriage with Brutus, but by what 
means? If he only points out to her the disgrace that will befall 
him and her, and if Amelia is thus induced to marriage, there would 
be no impedimcntum metus — such fear would be ab intrinseco. 
Should he, however, threaten to do her harm, or to disgrace her, 



MARRIAGE BY COMPULSION 165 

then there would be the impediment of fear; the fear being great, 
unjust, and compelling to marriage. 

We may suppose the case to be practically as follows : 

Caius has a large household in which Amelia is servant, and like- 
wise Brutus. Brutus, though knowing of her condition, is willing to 
marry Amelia, out of regard for his master and for his own benefit, 
but Amelia does not want him. The master threatens dismissal and 
withdrawal of support. Amelia sees a hard future before her, and 
in order to escape this hardship, she gives her consent. Under these 
circumstances the impediment of fear would be present. 

There is a considerable misfortune threatened unjustly, because 
Caius should justly provide for the expected infant, and the purpose 
of the threat is to induce marriage. Should the master, however, be 
willing to do in any case his duty in regard to Amelia, and only 
threaten to discontinue his special generosity, then there would be no 
injustice (in the particular threat) and therefore no impediment. 

The confessor should, therefore, closely question Amelia without 
saying anything about an invalidity of the marriage. Should he 
find that the impedimentiim is undoubtedly present, he should mean- 
while not disturb the bona fides, but examine into the whole situa- 
tion as to whether an agreement between Amelia and Brutus can 
not be induced. If Amelia can be moved to consent actually, Brutus 
being still agreeable, nothing further is required, because the causa 
metiis is then certainly removed. But if Amelia of her own will 
insist upon a separation, the confessor must refer her to the bishop, 
because then the whole case belongs to the forum externum. 

In this solution Brutus' previous knowledge of Amelia's con- 
dition is presupposed; otherwise we should have to discuss the 
wrong that Caius and Amelia inflicted upon him. 

W. Stentrup, S.J. 



XXXVI. NULLITY OF A MARRIAGE OWING TO NON- 
FULFILMENT OF AN IMPOSED CONDITION 

Silvia, when receiving the last Sacraments, confesses that in her 
younger days she had unlawful relations with her present husband 
Claudius, but also with one Ignotus, and that her relations with the 
latter had not been without consequences. A marriage with Claudius 
ofifering better prospects she led him to believe that he was re- 
sponsible for her condition. Accordingly, on this condition, he mar- 
ried her, she declaring that he was the parent of the expected child. 
They have been married for many years, and more children have 
been born to them. The child conceived before the marriage is also 
living. 

How about the validity of this marriage? 

There can be no hnpedimcntum erroris. According; to Canon Law 
such error is essential only which excludes the necessary consent 
jure divino (the error conditionis scnnlis forms an exception) — this 
would apply in the case of an error of person. The error of person, 
an error of identity, however, annuls the consent, only under cer- 
tain suppositions ; the intention must be absent. The error in quality, 
though always accompanying the error of identity, differs essentially 
from it, and does not take away the validity of the contract, not 
even if the quality about which there is error is of decisive influence 
upon the resolution to consent ; the consent is not excluded. The 
important so-called error qualitatis in personam redundans is not 
merely an error in quality, but a special kind of error in person. 

The error in our case is merely an error in quality — Claudius erred 
concerning the paternity of the child — though the error influenced 
his resolution. 

i66 



NULLITY OF A MARRIAGE 167 

The marriage is therefore not invahd because of error. Let us 
inquire whether it is invahd by reason of non-fulfilment of a stipu- 
lated condition. 

What is understood by a condition ? A condition is that which is 
requisite that something else should take effect. It is apparent 
from the definition of condition, that, if the condition is not ful- 
filled, the contract is not intended and therefore not valid, ex jure 
naturali. 

The question is then whether we are dealing in this case with a 
condition that would abolish the consent, and therewith the validity 
of the marriage. We are informed that: Claudius married Silvia 
upon the condition, claimed by her, that he was the parent of her 
expected child. 

Was this a real condition? Did Claudius intend to make the 
validity of the marriage dependent upon the fact of his paternity, 
or not? 

On the answer to this question the confessor would have to lay 
stress in his inquiry into the facts. If Claudius made it an actual 
condition, then the marriage is invalid, even in the case that the 
condition was not made in the form prescribed by Canon Law, t. e., 
not explicitly stated before parish priest and witnesses. The neglect 
of this formality does not make an in jure naturali void marriage a 
valid one, it only forfeits to the one who imposed the condition the 
right to claim it in foro extcrno. 

As regards the re-validation of a marriage invalid on account of 
lack of consent, such does not take place eo ipso by reason of a long 
cohabitation with the other party. There is necessary an actual, con- 
scious, removal of the lack of intent. In the foregoing case it would 
mean a conscious renunciation of the imposed condition, and ac- 



1 68 THE CASUIST— VOL. II 

quainting the other party with the renunciation, the two conditions 
jure divino requisite for renewal of consent. 

That such a renunciation was not made is attested by the fact 
that Silvia is not conscious of it. 

If, therefore, the marriage was entered into under an actual con- 
dition, then it has been invalid from the very beginning. 

In the solution of this case the all important question is: Had 
Claudius intended an actual condition, or only had an explicit sup- 
position ? 

Hubert Gerigk. 



XXXVII. ADMINISTRATION OF THE LAST SACRA- 
MENTS TO CHILDREN, OVER THE AGE OF 
SIX, IN DANGER OF DEATH 

Sinite parvulos venire ad me et ne prohibucritis eos: talium enim 
est regnum Dei (Mark x, 14). 

There can be no doubt that the parish priest, after the example 
of his Lord and Master, must in a special manner concern himself 
about children. Of an especial truth are the words : He who has a 
hold on youth, to him belongs the future. We may go farther and 
say : To him belongs also the present. For he who wins the chil- 
dren over to his sacred cause and arouses them for it, has in many 
cases also the parents ; with and through the children he gains in- 
fluence upon the family. A chief part of the priest's efifort must, 
therefore, be directed to the care of the children. But if the priest 
has to bestow special attention upon children in the normal state, it 
is befitting and right that he should do the same for those in sickness. 
How could he refuse his assistance to a child at the very moment 
when it needs him most? Why should he not make it his special 
concern to clear the way to heaven for a child ? Let us inquire then 
what form this spiritual care should take in the case of dangerously 
sick children over the age of six years ; what is to be said of the 
administration of the last Sacraments in such cases? 

The Rit. Rom. (tit. V, ep. 4, n. i) prescribes: Parochns hortctiir 
parochiales suos, tit ipsum admoneant, cum aliqucm in parochia sua 
aegrotare contigerit, praecipne si morbus gravior fuerit. This pre- 
cept is quite general (aliqucm). It has reference not only to those 
who have already been admitted to Confession and Holy Com- 
munion, but to all the faithful who have attained the use of reason, 

i6g 



170 



THE CASUIST— VOL. II 



all those, therefore, capable of an actual sin, whether of modo per- 
fccto or imperfecto, whether mortal or venial. This, however, can, 
according to the sentcntia communissima of theologians, not be 
doubted of children who have passed their sixth, or at most their 
seventh year, under generally normal conditions. 

Such child may, therefore, receive Extreme Unction, and the 
priest is bound to administer it to him. Hence the Provincial Synod 
of Prague in i860 proclaimed: Pueris infirmis cum ad earn aetatem 
pervenerint, in qua peccare potuerunt, quamvis nondum communi- 
caverint, administrandum est sacramentum extremae unctionis. 
Since, however, this Sacrament is a Sacrament of the living, it 
must, as the rule, be preceded by the Sacrament of Penance, or at 
least by sacramental absolution. 

In this sense the Provincial Synod of Cologne of the same year 
expresses itself: Cum extrema unctio sit sacramentum vivorum, 
communiter in suscipiente requirit gratiam sanctiUcantem; hinc, si 
■fieri potest, peccatorum praecedat confessio, si ea jam, qua par est, 
ratione fieri nequit, saltem absolutio. Fidelis omnes, qui graviter 
decumbant, modo olim rationis fuerint compotes, ut peccata com- 
mittere potuerint, capaces sunt hujus sacramenti; hinc etiam aetate 
juniores licet primam communionen nondum suscepcrint. The de- 
crees of both these Provincial Synods have been approved by the 
Holy See ; therefore they are not merely diocesan precepts but 
rather moral dogmatic decisions in concerning what should take 
place in the case of dangerously sick children capable of actual sin 
(children, therefore, above their sixth year). Attention should here 
be given also to the ecclesiastical regulations anent the reception of 
the Sacrament of Penance when in good health. The Cone. Later. 
IV says : Omnis utriusque sexus, postquam ad annos discretionis 
pervenerit, omnia sua peccata, saltem semel in anno^ Mcliter con- 



ADMINISTRATION OF LAST SACRAMENTS TO CHILDREN 171 

Uteatiir. Moreover the Catech. Rom. (De Poenit. 48) directs: Eo 
tempore confessionem puero indictam esse, cum inter bonum et 
mahun discerncndi vim liahet, in ejiisque mentem dolus cadere 
potest. Though this is not to be appHed to well children above their 
seventh year, it must be held that to children, in danger of death, 
it is certainly a priest's sacred duty to administer this Sacrament. 
Children above their sixth, at any rate above their seventh, year may, 
therefore, receive both these Sacraments, if they are in danger of 
death, and the priest is obliged to administer them. As a mat- 
ter of course general absolution can be given to them. 

Objection should not be made here that these Sacraments when 
administered to such young children might be exposed to irrever- 
ence. It should rather be remembered that the Sacraments were 
instituted by Christ propter nos homines et propter nostram salutem. 
No doubt, with the duty of administering these Sacraments is joined 
the other of preparing young children as well as possible. 

Even less valid is the objection that children at this age have, at 
most, venial sins upon their conscience, and that even these on ac- 
count of imperfect knowledge are only to be viewed as incomplete. 
Even admitting this to be a fact, which it is probably not in all 
cases, in God's sight even the least venial sin is by no means a 
trifling matter and it must be wiped out. Why then should not a 
priest come to the sick child's assistance? Why should he not help 
to free the child from his small faults and open to him the door of 
heaven? And, in conclusion, can we not be mistaken in a child's 
mental capacity ? Even of young children it is often true : Malitia 
supplet aetatem. The case may even occur that such a child may 
have committed a mortal sin, or at least is capable of committing 
one. Therefore it would be inexcusable to refuse to a child these 
Sacraments. At all events a zealous priest ought, and should, even 



173 THE CASUIST— VOL. II 

with not very bright children, choose the safer way and in danger 
of death administer these two Sacraments (conditionally if neces- 
sary). St. Alphonsus also holds so. To the question: An hoc 
sacramentwn conferri possit pueris, de quorum usu rationis dubium 
vertit? he replies : 

Sententia probabilior dicit, tales pueros ungendos esse sub condi- 
tioner quia per conditionem jam salvatur reverentia sacramenti, et 
aliunde Justa adest causa illud ministrandi sub conditione, ne priven- 
tiir pueri fructu tarn sahitari hujus sacramenti (S. Alph.^ I. 6, 
n. 718). 

Vicar Lebherz. 



XXXVIII. THE ADMINISTRATION OF THE LAST 
SACRAMENTS (INCL. VIATICUM) TO DANGER- 
OUSLY SICK CHILDREN UNDER SIX 
YEARS OF AGE 

In the preceding paper there is discussed the question whether the 
last Sacraments may be administered to dangerously sick children 
over six years of age. Of course it was not intended to say that 
the Sacraments there mentioned may not even be administered to 
children of five (or four) years of age, at least conditionally. 

Let us pass, therefore, to the question: May the Viaticum be 
given to such children? and, if so, is the priest obliged to do so? 

We must here observe first of all, that for the reception of Holy 
Communion a greater maturity of mind is required than for the 
reception of Extreme Unction and the Sacrament of Penance. On 
the other hand it should not be forgotten that there is not requisite 
for the reception of the Holy Eucharist modo Viatice the same 
maturity of mind as for the Communion ex devotionc. Suarez 
states — and in this opinion he is supported by other theologians : 
"De communionc facicnda in articulo mortis non est cadem ratio." 
At any rate it suffices here that the child is able to distinguish the 
Sacrament from ordinary food, to adore it and receive it reverently. 
In this sense Benedict XIV expresses himself: 

"Poterit episcopus synodali constitntione parochus compellcre ad 
administrandum ss. viaticum piieris max decessuris, si eos coiii- 
pererint tantam assecutos jiidicii maturitatcm, iit cibiim istum coeles- 
tem et supernum a communi et materiali discernant; hand enim 
leviter dclinquere crcdirmis, qui pueros ctiam duodcnnes et per- 
spicacis ingenii sinunt ex hac vita migrare sine viatica hanc nnam oh 

173 



174 



THE CASUIST— VOL. II 



causam, quia scilicet nunquam antea, parochorum certe incuria et 
oscitantia, eucharisticum panem degustarunt" (De Synod, dioec. 
1. VII, c. 12, n. I et3). 

Under this supposition St. Alphonsus regards it a sententia com- 
munissima, that the Viaticum not merely may, but should be ad- 
ministered. "Pueris, qui jam sunt compotes rationis in articulo 
mortis non solum communio dari potest, sed etiam debet" (S. Alph. 
6, n. 301). Benedict XIV denotes the contrary practise of parish 
priests as a gravem abusum radicitus extirpandum. According to 
Benedict XIV, and to St. Alphonsus, it is therefore a strict duty 
to administer the Viaticum pueris, qui rationis compotes sunt. Gury 
expresses himself still more positively. He replies to the question: 

"An in periculo mortis communio tribuenda sit pueris, qui nondum 
ad sacram synaivim admissi sunt? AfErmo, quoad pueros qui sunt 
rationis compotes. Immo non solum eis dari potest, sed etiam dari 
debet. Ratio est, quia ex una parte pueri in tali periculo constituti 
tenentur ex praecepto divino communicare; ex alia parte utilitas 
eucharistiae tunc majorem dispositionem non exposcit. Graviter 
igitur errant parochi, qui viaticum huiusmodi pueris administrare 
nolunt" (Gury II, n. 320). 

These are probably the most important ecclesiastical precepts and 
utterances of theologians about the administration of the Viaticum 
to dangerously sick children. However, for our question whether 
to children before their sixth year the Viaticum may be administered, 
there is nothing gained from these quotations, as none of the 
passages quoted speak of children of six years of age. Indeed the 
above words of Benedict XIV appear to me as denying our ques- 
tion. He censures only parish priests who refused the Viaticum to 
children of twelve years on the ground that they had not before 
received Holy Communion. He would without doubt have censured 



ADMINISTRATION OF LAST SACRAMENTS TO CHILDREN 175 

also those who refused the Viaticum to six-year-old children were 
they to be censured. These children have not only never received 
Holy Communion, but have not even received the Sacrament of 
Penance. It appears to me also that the passages, given before, in 
proof that Extreme Unction and the Sacrament of Penance are to be 
given to six-year-old children, speak against the administration of 
Viaticum. It is said there repeatedly: quamvis nondum commiini- 
caverint, or licet priniam communioneni nondum susceperint. There 
is, therefore, a distinction made here between the capability to re- 
ceive the two first Sacraments, and the capability to receive the 
Viaticum. In Suarez there is, however, a passage which does not 
make this distinction. He says : "Existimo in articulo mortis dan- 
dam esse communioneni cuicumque homini habenti nsiim rationis ad 
peccandnm et capaci confessionis et extremae nnctionis." He also 
adds that the child is obliged to receive, and the priest obliged to 
administer. Suarez, however, stands alone in this opinion. All 
others make use of the universal expression: Qui sunt rationis com- 
potes. To these belong under normal conditions six-year-old chil- 
dren. But as I have already pointed out there is a distinction to be 
made between children who have sufficiently attained the use of 
reason to be capable of actual sin, and those who are so advanced 
even that they can reverently adore the Eucharist, and who are 
aware of what they are partaking. This is rarely the case with six- 
year-old children, and yet we must require this at least. It must be 
admitted that there may be six-year-old children who, after previous 
instruction, are capable of receiving the Viaticum. But even in such 
cases I believe the administering of the Viaticum should be omitted 
for reasons of prudence. In some cases of grave illness it will be 
impossible to prepare children sufficiently. If the priest administers 
Holy Communion to a certain capable and sufficiently instructed 



176 THE CASUIST— VOL. II 

child, and not to others, it is easy to see that unpleasantness will 
arise, on part of parents, etc. That such cases where the Sacra- 
ment can properly be administered will be rare, experience teaches. 
Experienced and zealous priests therefore observe this practise. 

My opinion is that children before their sixth year may receive 
Extreme Unction and the Sacrament of Penance, and that the priest 
is obliged to administer them (sometimes conditionally). The 
Viaticum, however, can only be given in rare cases, and even then 
there is no obligation to administer it. 

N. B. — It is evident that such children must be interred according 
to the ordo sepeliendi adultos. The ordo sepeliendi parvulos applies, 
as its wording demonstrates and as also the Rit. Rom. expressly 
declares, only to children qui ante usum rationis eripiuntur et ora- 
tione Ecclesiae non indigent. This is not the case of six-year-old 
children. 

Vicar Lebherz. 



XXXIX. NULLITY OF MARRIAGE BECAUSE OF 
ANTECEDENT INSANITY 

S. married in March, 1886, the girl H., twenty-three years old. 
The latter, even before the marriage, had given unmistakable symp- 
toms of mental derangement, which reappeared afterward and in- 
creased to such an extent that it was necessary to confine her as a 
raving maniac in an insane asylum, where she still is without hope of 
recovery. On July 14, 1894, S. obtained the civil decree of divorce 
for which he had sued, and on April 9, 1895, he married one A., 
who bore him several children. To appease his conscience S. ap- 
plied to his bishop to annul his marriage with H., claiming that the 
necessary consent had been lacking owing to previous insanity of 
H. The bishop did not grant the petition because the nullity of the 
marriage had not been established. The metropolitan chapter to 
which S. then appealed decided the marriage in question was null 
and void. The defender of the marriage tie now appealed the case 
to the 5*. C. C. We give in the following the vote of the canonists 
of the 6^. C. C, approved by the Congregation. 

Without entirely voluntary consent no marriage can take place. 
Consent can be voluntary only when given by one who is the com- 
plete master of his actions and resolves upon the consent after ma- 
ture deliberation. Canonists hold that in regard to the marriage 
contract the same deliberation is requisite as for the committal of a 
grievous sin. An insane person, therefore, can only then give the 
requisite consent for marriage if he or she has lucid moments and 
gives consent in one of these. These conditions, however, should not 
be pre-supposed, but must be proved beyond all doubt. If any doubt 
remains, then insanity must be pre-supposed, because it is the perma- 



178 THE CASUIST— VOL. II 

nent state. Applying this principle we find as follows : Many cases 
of insanity have occurred in H.'s family. As regards H. herself, 
since the years of discretion to within six months of the marriage 
she did things which were, to say the least, forewarnings of insanity. 
Two weeks before the ceremony unmistakable symptoms of insanity 
frequently showed in her. Thus she asked for the last Sacraments, 
although perfectly well. Even during the wedding ceremony there 
occurred manifestations of madness. As an instance, she tore the 
bridal wreath from her head, and only by force could it be replaced. 
When the moment came to step to the altar she hesitated, and only 
after urging followed the bridegroom. Again, she had to be asked 
three times before she would place her hand in the bridegroom's. 
On the evening of the wedding day she threw the wedding ring 
down on the floor and retired to sleep with her sister. The canonist 
concludes from these facts that the necessary consent to the marriage 
has been lacking and that for this reason the marriage is to be re- 
garded as invalid. 

Herm. Kustgens, D.D. 



XL. A RAILWAY DISASTER CAUSED BY MISCHIEF 

Audax, a mischievous farm hand, amused himself late one evening 
by misplacing railroad switches. His intention was to get the switch- 
man angry. After a while along comes a train, runs into the wrong 
track and demolishes some cars standing there. The switchman 
escapes punishment of dismissal solely because of his previous good 
record, but he is sentenced to pay damages of one hundred dollars. 
After a time Audax goes to confession and asks whether he is 
obliged to make good the $ioo. The confessor absolves him from 
so doing in consideration of the fact that neither switchman nor 
station master had fulfilled their duty of inspection. Did the con- 
fessor decide rightly? 

Anszver. The confessor's decision is not correct in all points. 

1. The reasoning by which he denies the obligation of restitution 
is erroneous. Supposing the switchman had neglected his duty of 
inspection (whether such was really the case can only be ascertained 
from the interval of time between Audax's mischievous deed and 
the train's arrival) he is the negative cause of the damage, answer- 
able to the railroad company for it, because it was a neglect of his 
official duty and he has to bear the consequences. But Audax at 
all events is the cause of the harm done, and at that the positive 
cause, and the positive doer of damage is bound to make restitution 
before the negative doer, if otherwise the conditions which require 
restitution prevail (Lehmkuhl, Theol. No. I, n. 1016; S. Alph. 
lib. 3, n. 573). 

2. If Audax would become known, and be accused, as the per- 
petrator, there is no doubt but that he would be sentenced to pay 
damages and these would also bind in conscience. For this there 

179 



i8o THE CASUIST— VOL. II 

is necessary, besides causing the damage, only the legal guilt and 
this is undoubtedly present (Lehmkuhl, Theol. Mor. I, n. 965). 

3. If the matter is merely to be decided in the interior forum, it 
must be ascertained that there was culpa gravis theologica, not only 
against justice graviter culpahilis, but to an extent also the anticipa- 
tion of ensuing damage. Of itself Audax's deed is a grievously 
sinful act; it might well have happened that the displacing of the 
switches had resulted not only in the demolishing of two cars, 
but in a much more serious accident, perhaps with loss of human 
life. It would be therefore proper to ask Audax if he had not 
thought of the possibility of such a calamity. If admitting he 
had such thought, he would have to be held to make restitution, 
even if he had carelessly persuaded himself that just then a disaster 
would hardly occur. Should he earnestly assert that he had not 
thought of the possibility of a calamity, and that he expected the 
switchman would immediately come around, and, furious about the 
displaced switches, set them in order — a possible train of thought 
for an easy going boy — ^he could not then be held in conscience to 
make restitution. There might be a culpa gravis against charity in 
exasperating one's neighbor so maliciously (this is not examined 
here), but there is here no gravis culpa with regard to causing seri- 
ous damage. That in this case the switchman had to bear the dam- 
age is unfortunate, but not unjust. 

Aug. Lehmkuhl, S.J. 



XLI. THE AGE FOR CONFIRMATION 

Every baptized person, not yet confirmed, may receive Confirma- 
tion. For this reason Confirmation may be administered even to 
young children who have not yet arrived at the years of discretion. 
As a fact this Sacrament was formerly administered immediately 
after Baptism. According to present discipline, however, the 
Church does not allow it to be administered to children before the 
completion of the seventh year, and not until the attained use of 
reason. Man is to receive the fulness of Christian life, through the 
imparting of the Holy Spirit, at an age when capable of leading a 
Christian life. Confirmation may, however, even now, be admin- 
istered earlier: i. When there is a lawful custom of earlier recep- 
tion, as is the case in Greece and Spain (where children are con- 
firmed at the age of two or three years) ; 2. When the bishop by 
reason of great extent of his diocese, or for other important reasons, 
can but seldom confirm ; 3. Where danger exists that a child might 
die before Confirmation and the bishop wishes to go and confirm 
him. 

In many parts it has become customary that children are con- 
firmed only after making their first Holy Communion. What Leo 
XHI thought about this custom is plain from his letter to the 
Bishop of Marseilles, who had abandoned the former custom and 
confirmed children before their first Holy Communion. In his 
letter Leo XIII expressly approves of the bishop's procedure and 
says of the existing custom: Ea nee eum veteri eongruebat eoustan- 
tique Eeclesiac iustitiito nee eum fideliitm utilitalihiis. 

There lie dormant in the heart of the child the germs of most 
varied desires, which may bring about man's undoing, if not early 



1 82 THE CASUIST— VOL. II 

weeded out. From earliest youth the grace and assistance of the 
Holy Spirit are required to this end. The Holy Father sees a two- 
fold advantage in early Confirmation: The childish mind is made 
more receptive for acquiring the Christian rules of life, it will be 
better prepared for the Holy Communion later to be received, and 
will obtain therefrom greater fruits: Porro sic confirmati adoles- 
centuti ad capienda praecepta molliores Hunt, suscipiendaeque post- 
modum Eucharistiae aptiores, atque ex suscepta uberiora capiuni 
cmolumenta. The matter is one for the bishops to regulate for 
their respective dioceses. 

Fr. Goepfert, D.D. 



XLII. RESTITUTION, ON ACCOUNT OF THE 
PURCHASE OF STOLEN GOODS 

Anastasia, saleswoman in her sister Lucia's store, buys provisions 
which their vender, a housekeeper, has secretly taken out of her 
allowance, as she considers herself entitled to them through her 
economy in the management of the household, and also to improve 
her wages, which she considers insufficient. Anastasia purchases 
these things, partly not to expose this person in the presence of 
others, and partly because her sister has told her she may safely do 
so, and that the responsibility for the truth of the assertion rested 
with the housekeeper. 

Is this proper, or is there in regard to the injury done to the 
housekeeper's employer the obligation of restitution, and in what 
order ? 

Ansivcr. i. The housekeeper can not be considered justified in 
appropriating anything over the agreed wages, under the pretext 
of compensation. To make such a thing permissible it would have 
to be proved that the person had been forced to work for unfairly 
low wages. This is not to be supposed in our case. The pretext of 
economical saving may be regarded more leniently, if in reality the 
articles ordinarily used in the household were supplied at a saving. 

2. The purchase, on part of Anastasia and Lucia, is of articles 
which at least are very doubtful property of the vender ; that a great 
part of these wares are the property of another, therefore stolen, is 
morally certain. Consequently their purchase is unlawful ; nor does 
it become lawful because Anastasia hesitates to expose the vender; 
she can and must refuse the deal, and in order to talk this over with 
the housekeeper alone this person may be asked to wait until all 
other customers have left. 

183 



1 84 THE CASUIST— VOL. I! 

3. As there is acquisition of very doubtful, even positively un- 
righteous, property, the obligation of restitution prevails. As con- 
cerns the order, the housekeeper is liable in the first place ; she must 
refund to her employer the value received, or, in case the articles 
were sold below their value, the actual value of all things to which 
she had no certain claim ; in regard to the balance between the real 
value and the price received, she is entitled to reimbursement from 
Lucia's cash drawer, which profited by this difference in price. In the 
second place, if, namely, the housekeeper can not, or will not, make 
restitution, Anastasia and Lucia are liable for the loss which the 
employer has suffered. The entire loss must be refunded if the 
injustice of the appropriation is positively ascertained; if the 
injustice remains in doubt, the restitution may be reduced to a part, 
say one-half. Finally, it may be asked whether Anastasia is obliged 
before Lucia, or Lucia before Anastasia. As Lucia approved of 
Anastasia's action and Anastasia bought only in Lucia's name, the 
obligation of restitution falls first of all upon Lucia. Should Anas- 
tasia make restitution she would, in case the housekeeper could not 
be made to reimburse her, be entitled to recover the money from 
Lucia ; both, however, Anastasia as well as Lucia, are entitled to re- 
imbursement by the housekeeper for the money paid to her. 

August Lehmkuhl, S.J. 



XLIII. CO-OPERATION BY THE FURNISHING OF 
NON-CATHOLIC CHURCHES 

A firm manufacturing stained glass, owned by a Catholic, received 
a handsome order from a Protestant community. The head of the 
firm asks Father A. whether he can properly and with a clear con- 
science undertake the commission. 

Father A. forbids this, absolutely, as it would be assisting in 
building a temple for heretics. Subsequently Father B. is asked, 
who at once permits the firm to do the work. 

Who is right ? What justification is there for obeying one and not 
the other ? 

If Fathers A. and B. gave their decision without further inquiry 
into the status of the case, they both erred. We will explain this 
more fully. What is here really concerned ? A Protestant house of 
worship is in need of stained glass windows ; if the house were in- 
tended for profane purpose there would be no difficulty whatsoever. 
But the windows are to adorn a place where will be held worship the 
participation in which is forbidden by the Church, consequently a 
co-operation in something prohibited, a coopcratio ad rem malam, can 
not be denied. In the coopcratio, however, the first question is, can 
it be designated as formal? If so, there can be no permission, be- 
cause it would be an actual participation in the sinfulness of the act, 
therefore a sin ; if not formal, then it is material, and the act of the 
co-operation is neither bad of itself nor of its intention, it would 
solely become wrong through the guilt of the performer. That is 
sufficient, however, to render such co-operation unpermissible. The 
law of charity requires us to prevent evil as much as possible, 
primarily, therefore, not to assist in it in any way at all. The obliga- 

185 



1 86 THE CASUIST— VOL. II 

tions of charity, however — we must not overlook this — exalted as 
they are, do not oblige us in general under great sacrifices, i. e., for 
sufficient reasons to suffer evil to be done is not sinful. Hence the 
principle that a material co-operation is permissible for comparatively 
grave reasons. In material co-operation the question of the im- 
portance of the motives for the action are of great import. The 
more sinful the act, the greater the injury, the worse the scandal — 
on the one hand ; on the other hand the more closely the material 
co-operation is connected with the act, the more necessary the co- 
operation for its accomplishment — then the more weighty must be 
the reason that is to render such material assistance permissible. 

Let us apply this principle to the case before us. It is here a 
question of material support of a heretical sect ; therefore the great- 
est good, the faith, is at stake. If by refusal of assistance the faith 
could be preserved, or a real injury to it averted, then our duty is 
clearly defined. Such would be the case if a new sect was being 
founded, or if a sect newly entered a locality theretofore free from 
all heresy. Hence the great severity of the rescript of the Cardinal 
Vicar of July 12, 1878. 

If, however, a sect is tolerated to prevent greater evil, and officially 
recognized by temporal authorities, the case is a little different. The 
danger to the faith has become chronic, not so burning ; the scandal 
has become lessened by conventionalism, though unfortunately not 
without spreading indifference in matters of faith. For the Catholic 
there remains the duty of abstaining from material co-operation, 
especially one directly connected with the promotion of heresy, as, 
for instance, contributing money to build heretic churches, con- 
tributing, or helping, at bazaars for the same purpose, etc. Archi- 
tects must not make plans for such churches, nor erect the building, 
unless a more important reason exists than the gain itself. Fre- 



FURNISHING OF NON-CATHOLIC CHURCHES 187 

quently, however, it will be best not to say anything about this, and 
not to disturb the good faith that has arisen from long existing 
practise. The decoration of churches appears to be less intimately 
connected with the prohibited worship than the building of the 
church itself. For this reason the furnishing of stained glass work 
might more easily be permitted ; yet there should be a weightier rea- 
son than the ordinary gain, for instance actual lack of work which 
threatens the business, or which necessitates the discharge of work- 
men, who then would only with difficulty obtain other positions, and 
similar reasons, such as great improvement of the firm. If such 
reasons exist, and the locality in question is one of mixed religions, 
if there is no scandal to fear, or if it may be removed by explanation, 
the firm may undertake the work. The pictures must of course not 
bear even a trace of heresy, 

W. Stentrup, S.J. 



XLIV. THE EXTENT OF OBEDIENTIA CANONICA 

In certain circumstances the solemn promise of ecclesiastical 
obedience is demanded. Such promise is, in first place, by precept, 
made and confirmed by oath to the Pope. The cardinals take this 
oath of loyalty to the Pope upon their elevation to the cardinalate; 
the archbishops before their investure with the pallium ; this oath of 
loyalty forms part of the ceremonies at the consecration of bishops 
and abbots ; it is contained in the Tridentine confession of the 
faith, and hence is required of all who, according- to ecclesiastical 
precept, must make the Tridentine confession of faith. In the latter 
the formula is: Romano Poiitifici, bcati Petri Apostolonini principis 
succcssori ac Jcsu Christi vicario zwram ohcdicntiam spondco ac] 
jiiro. 

Besides this oath of loyalty to the Pope, there is at the consecra- 
tion of priests a simple promise of obedience (not on oath) given by 
the newly ordained into the hands of the officiating bishop, to him, 
and his successors, if he is the diocesan bishop of the newly or- 
dained, otherwise to the ordinary of the diocese to which the newly 
ordained will belong: Promittis mihi ct succcssorihns uicis (PoutiHci 
or Praclato Ordinario fito pro tempore existcnti) rcverentimn et 
obedicntiam. R. Proiuitto. 

Only after this solemn promise has been given, the kiss of peace 
is imparted to the ordained, and the latter receives full recognition 
as lawful priest of the Catholic Church. 

What new obligations are assumed by this oath, and by this 
promise? That some new obligation is assumed can hardly be 
doubted. The oath taken binds the conscience with a new moral 
bond, at least that of the rcligio, so that disobedience is not merely 

i88 



THE EXTENT OF OBEDIENTIA CANONIC A 189 

disobedience but perjury as well, and related to sacrilege. The 
simple promise of the newly ordained priest, though not possessing 
the same rigor of obligation, must still be viewed, even though in 
lesser degree, as a vinculum rcUgionis, or as a ratification of the 
vinculum created by the ordination, as the solemn elevation to the 
most sublime state is on the part of the Church only consummated 
and approved after the deliverance of this promise. Though a new 
bond of obligation is therefore forged, the question follows: is 
there a new obligation? This can, in a certain sense, be affirmed, 
but also just as correctly denied. An obligation ensues to some- 
thing new, inasmuch as with that promise of subjection a new 
office is undertaken ; hence there ensue new obligations of office and 
state of life, especially new obligations of duty toward the higher 
ecclesiastical superiors. But these obligations already exist inde- 
pendently of the oath rendered or the promise made: they are not 
created by the latter, only confirmed and emphasized. 

In matter and extent the obligation of canonical obedience is, on 
the one hand, measured by the office and the state, in the assump- 
tion of which the vow of obedience and submission is rendered ; on 
the other hand the power to impose commands and to require obedi- 
ence is measured by the official position of the one to whom the 
vow is made. 

Wernz^ in his Jus Decretalium, Vol. 2, n. 192, says correctly that, 
"The promise of obedience or the oath of loyalty extends for 
clerics only to lawful and ecclesiastical matters, especially to those 
specially expressed in the formula of the oath, and thereby bishop 
or clerics in no wise become vassals, or political subjects, of the 
Pope." Special matters are referred to in the bishop's oath ; not in 
the oath in the Tridentine confession of faith. In this therefore, the 
affirmation by oath has reference only to the universal relation of 



I go 



THE CASUIST— VOL. II 



submission of the Catholic Christian to the ecclesiastical precepts 
of the Papal See. 

In regard to the priestly promise, Wernz^ loc. cit., explains : 
"Obedientia canonica, quam clericus et heneiiciatus suo Episcopo 
praestarc tenetur, gcneratim in hoc consistit, ut ipsiiis legibus et\ 
praeceptis, sententiis et corrcptionibus, doctrinis et monitis prompte 
obsecundet. Inter alia vigore promissae obedientiae canonicae prae- 
sertim etiam illud exigitur, ut clericus licentia sui Episcopi in aliam 
diocesim non discedat, derelicto servitio Ecclesiae, cui in ordinatione 
addictiis fuerat. — Quare licentia ab Episcopo in forma legitima est 
danda et absque justa causa denegari nequit. — Episcopus clericum 
dioecesaniim qui certo loco non est adscriptus, invitum retinere non 
potest, ne a sua dioecesi discedat et alibi parochiam accipiat; quod si 
ilium propter necessitatem omnino in diocesi retinere vel ad illam 
revocare vclit, il facere non prohibetur, dummodo eidem de congrua 
provideat." 

The first and chief duty of canonical obedience is, then, not to" 
abandon of one's own accord the assumed office, nor to break arbi-' 
trarily the relation to the diocese. 

Then follows, as second obligation, the duty to obey, in the charge 
undertaken, the ecclesiastical instructions of the bishop, and to 
obey, still more zealously, the related higher regulations. Such 
higher regulations are contained, for instance, in the constitution 
of Leo XIII on prohibited books, and printing. Apart from par. 22, 
which commends a general precept specially to the clergy, par. 42 is 
particularly addressed to priests: "Viri e clero saeculari ne\ libros 
quidem, qui de artibus scientiisque mere naturalibus tractant, incon- 
snltis suis Ordinariis public ent, ut obscquentis animi erga illos ex- 
emplum praebeant. — lidem prohibentur, quominus, absque Ordi- 
nariorum venia^ diaria vel folia periodica moderanda suscipiant." 



THE EXTENT OF OBEDIENTIA CANONIC A 191 

The last sentence touches, therefore, a third instance, i. e., non- 
ecclesiastical matters, in regard to which priests may owe sub- 
mission and obedience to their bishop. But we see that this is a 
fact only in a very restricted extent. In this sentence there is refer- 
ence to things which prejudice in a high degree the fulfilling of the 
obligations of office and state, or which endanger the reputation of 
the priest or the priestly state. That in such matters the bishop may 
exert power is evident ; that such conditions be prevented is prob- 
ably the reason for the general precept. Where, therefore, condi- 
tions or reasons prevail, like those which occasioned the papal pre- 
cept, the bishop may act by power of his authority, and demand the 
priest's obedience. In other non-ecclesiastical matters this will 
hardly be the fact : except where matters are concerned which also 
otherwise are shown to be prohibited or to be required ; to an exact 
fulfilment of duty, in all matters, the bishop must without doubt 
hold his clergy in a special manner, as they should set a good 
example to the rest of the faithful, always and everywhere, by spot- 
less conduct and faithful fulfilment of duty. Without question the 
episcopal authority remains therefore quite within the privileges of 
its office when it, in kindred and not necessarily ecclesiastical mat- 
ters, without actual command imparts admonitions and directions, in 
order to prevent faulty steps, or to warn against faulty actions and 
ways of acting, which might give scandal, or may be unedifying. 

Aug. Lehmkuhl, S.J. 



XLV. PILFERINGS OF PROVISIONS— A CASE OF 
RESTITUTION 

Cains, who for thirty years has staid away from the Sacraments, 
resolves on the occasion of a mission to go to confession. To the 
question why he had not been to confession so long, he gave the fol- 
lowing answer : "I was employed in a large provision house which 
belonged to a rich Hebrew. Like all others there employed I took 
home provisions, such as flour, sugar, coffee, etc., without the knowl- 
edge, and, of course, against the will, of the employer. This has 
been going on for thirty years. Had I gone to confession I should 
have had to stop these pilferings, and so could not have cared for 
my household as abundantly as before. Now, however, I have been 
pensioned and do not need the help any longer, and therefore I come 
to confession." 

The missionary asks: ''Is Caius obliged to make restitution? or 
are there excusing circumstances, as, for instance, great and to an 
extent unjustly acquired wealth of the employer ; or the thought of 
additional compensation in view of unsufficicnt wages? Such ex- 
cuses were not, however, present in the man's mind, he was con- 
scious of committing theft." 

To the first question, is Caius obliged to restitution, we must reply 
with an unconditional yes. In our case both conditions which create 
the obligation of restitution are present. For thirty years he has 
committed one theft after another, and thus caused his employer in- 
jury which it is his duty to make good. Even if the individual 
pilferings were not serious in themselves, yet his intention, as also the 
aggregate of the matter, puts beyond question the seriousness of the 
injury and of the guilt. The other condition, unjust acquisition of 



PILFERINGS OF PROVISIONS 



193 



another's property, is also present. For Caius possesses all the stolen 
goods in acquivalenti, i. e., in his property. During all these years 
he was enabled to lay aside that part of his salary which otherwise 
would have been employed in purchasing provisions, or he has used 
it for the good of his household, and thus has enriched himself at 
the expense of his employer. The surplus gained in this manner he 
can not call his own, it is the fruit of his pilferings and ought not to 
remain in his hands. 

But the missionary asks, further, whether there are mitigating cir- 
cumstances. Let us keep in mind the penitent's confession : Caius 
was conscious of stealing. His only excuse is that the others did 
likewise. This, however, can not make an unjust act a just one, un- 
less possibly the silent consent of the employer may be supposed. 
But he did not approve ; the thefts took place without the knowledge, 
and against the will, of the owner, as Caius himself avows. 

Could not the idea of secret compensation excuse? Of course 
Caius had no such idea ; but that would make no difference. For if 
some one has been wronged there remains for him the claim for 
compensation, until he has received it, or voluntarily renounced it. 
But let us not forget that he who would thus secretly compensate 
himself, apart from other conditions, must be morally certain of the 
justice of his demands. Is this so with Caius ? In the casus nothing 
points to an insufficient salary, indeed the pension granted by his 
former employer would demonstrate his liberality. To take refuge in 
a presumable condonation by the employer appears likewise to be 
excluded, as the proprietors of large commercial establisliments are 
little inclined to such leniency. 

To the missionary, in his proper desire to assist his penitent as 
much as possible, the idea occurs that the Hebrew had for the 
greater part unjustly acquired his wealth. Is this certain? And 



194 THE CASUIST— VOL. II 

even if it is: the flour, sugar, etc., belonged to the Hebrew and 
therefore he is injured in his property. But let us suppose — and 
Caius probably can throw light upon this subject — dishonest trans- 
actions have taken place. Then the next question is, how is Caius 
concerned? Either he positively co-operated or he did not. In the 
former case he is obliged to restitution to the defrauded ; in order, 
of course, after the employer in whose name he acted. Nevertheless 
this would open a way which at least will materially facilitate the per- 
formance of restitution. For Caius must make restitution to the 
injured, but has the right to claim indemnification from the Hebrew. 
Let him therefore give the unjustly acquired property to those 
that were cheated. The latter are, however, numerous and to a 
great extent unknown; besides, most of them were probably not 
seriously injured and therefore Caius in his difficulty may let the 
poor take their place. The confessor accordingly should impose 
upon Caius the obligation to give alms as generously as his circum- 
stances permit ; thus restitution will be made gradually as far as 
possible. If Caius has not positively co-operated in frauds, but knew 
positively of the injustice that took place, then he may regard the 
victims as creditors of his former employer and return to them 
that of which they were deprived in the manner above described, 
with the reasonable presumption that the employer had no in- 
tention of restitution. 

W. Stentrup, S.J. 



XLVI. A CASE OF RESTITUTION 

A workingman, named Caius, went one evening with some com- 
panions for a walk in the outskirts of the city. Suddenly he was 
set upon by an exasperated enemy, Gracchus, who had been lying in 
wait for him, and who threw him from the roadway down into the 
ditch. The violent fall from considerable height might have caused 
serious injuries, even fatal ones ; as a matter of fact, however, Caius 
was not hurt. Nevertheless he pretended to be injured, and had his 
friends carry him home. Subsequently he brought suit for assault, 
in consequence of which Gracchus was sentenced to a term in prison, 
also to pay Caius damages to the amount of fifty dollars; further- 
more Gracchus had to pay costs, and suffered in consequence of his 
imprisonment a lapse in wages, so that his financial loss amounted 
in all to about one hundred dollars. Caius wishes to know whether 
he must make restitution to Gracchus. 

Answer, i. Caius by his false accusations against Gracchus has 
formally violated justice, and is therefore obliged to restitution, for 
he biased the court, and the measure of punishment, in an effective 
manner, as the nature of the complaint is the basis upon which jury 
and judge find according to law. For this reason, presuming the law 
and the court are just, sentence and punishment in their moral jus- 
tification depend entirely upon the complaint. If this is false and 
unjust, so are sentence and punishment. This is plain and therefore 
Caius can not be exonerated on account of lack of intention. Indeed 
we may safely say : he intentionally misstated the complaint so that 
Gracchus' punishment might be heavier; for nemo gratis mendax. 
Hence it is immaterial for our case what particular motive induced 
him to lie in court, whether hatred, greed, or what else. All con- 

195 



196 THE CASUIST— VOL. II 

ditions are therefore present that constitute the obligation of resti- 
tution in the forum of morals, namely an iniusta actio, quae est 
causa damni per se efhcax et theologice culpabilis. Caius for this 
reason is obliged to restitution, and he alone, provided the court was 
fair, as may be presumed. 

2, The question is then, to what extent is he to make restitution? 
To the extent of the difference, the increase, caused by the false 
complaint. For it was Caius' right to sue, though the charge was 
properly not that of corporal injury, but that of an attempted crime, 
which would not have included indemnification for Caius in the 
sentence, as only actual injury, not the attempt at it, entitles to such. 
For this reason Caius must, first of all, make restitution of the fifty 
dollars. As regards the rest : costs and loss of wages, we may sup- 
pose that the delinquent would also have been condemned to pay 
costs to about the same sum, had the complaint been according to 
facts, while the term of imprisonment would have been shorter. 
Strictly speaking, therefore, Caius has to refund what money value 
corresponds to the increase of the imprisonment due to the false 
charge. On the other hand, he may now, when it comes to the 
consideration of restitution, compensate himself for all the dis- 
agreeable vexation which the affair has occasioned him without his 
fault. Both matters in their moral valuation might be considered as 
about equivalent and so there would be little or nothing of the one 
hundred dollars remain for restitution to Gracchus. As a matter of 
fact, a hundred dollars is not too heavy a fine for an offense that 
might have easily caused serious injury, even death. 

Alb. Krapoll, S.J. 



I 



I 



XLVII. ABSOLUTION OF A DYING PERSON IN THE 
STATE OF UNCONSCIOUSNESS 

In the conferences held in Coetu s. Pauli ad s. ApoUinarem at 
Rome, experienced theologians submit solutions of pastoral cases. 
The following is a case which P. Maurus M. Kaiser, O. Praed., 
presented and solved : 

Father Titus was at dinner with his assistant, Father Caius, when 
the sexton rushed in and announced that some man had been danger- 
ously wounded by another, who then turned the weapon against 
himself and attempted suicide; both were near death. The two 
priests hastened at once to the side of the dying, the pastor attending 
the aggressor, and the assistant the victim. When they returned the 
curate remarked : "I was just in time ; the poor fellow, although quite 
unconscious, still lived, and thus I was enabled to give him absolu- 
tion." "That was quite useless," answ^ered the parish priest. "And, 
moreover, this murdered youth was overtaken by the judgment of 
God; he has lived in sin, given great scandal, and staid away from 
the Sacraments. As regards the murderer I did not give him abso- 
solution, although bystanders told me that before my arrival he had 
indicated, by winking his eyes, that he desired something. But the 
Sacrament of Penance can not be effective without the acts of the 
penitent; these are the matter of this Sacrament, just as water is 
the matter in Baptism. If, therefore, contrite confession is absent, 
then the ahsohitio, the forma Sacramenti, can not be applied." 
Whereupon Caius doubtfully shakes his head. 

Questions. — I. May a dying person, w'ho is unconscious and gives 
no sign of contrition, be absolved? 

II. Which of the two priests acted correctly? 

197 



198 THE CASUIST— VOL. II 

III. What is to be thought of the reason with which the pastor 
sought to justify his action? 

Resp. ad. I. We may distinguish two cases. If it is a dyin^ 
person who no longer is able to give the priest a sign of contrition, 
but who has given such signs to those present before the priest's 
arrival, then it is, as Billuart states (De Poenit, Diss. 6 a 10, para. 
7) : "Comnninis et certa sententia in variis Conciliis et locis luris 
deiinita, talent moribundum esse ahsolvendum, saltern conditionate 
et iuxta plurium opinionem valde prohahilem potius absolute." 

In this case there is, therefore, no difficulty. But if the dying 
person has neither before nor after the priest's arrival given a sign 
of contrition, then the case is more difficult, St. Alphonsus (Theol. 
Mor. I, 6, 428) mentions two opinions. Some authors, he states, 
naming Busenbaum, Lugo, Suarez, Roncaglia, Laymann, are of 
opinion that absolution can not be given, and he adds : Ratio brevis 
sed valde urgens est, quia tunc deest materia sacramenti, quae debet 
esse sensibilis. Nevertheless he himself agrees with the sententia 
communior which asserts one can and should give absolution condi- 
tionate to such dying person, if this person has lived a Christian life. 
Billuart likewise defends this opinion, "although several great theo- 
logians oppose it." The reason that St. Alphonsus gives for this 
opinion is that the Sacraments were instituted on man's account, 
and that, therefore, in cases of extreme necessity, one may ad- 
minister them even if the matter is doubtful : "Necessitas efficit, ut 
licite possit ministrari sacramentum sub conditione in quocunque 
dubio; per conditionem enini satis praepeditur iniuria sacramenti et 
codem tempore satis consulitur saluti proximi. 

But is the reason given for the first opinion, namely : The absolu- 
tion can not be given "quia diest materia sacramenti, quae debet esse 
sensibilis," not a good one ? The Materia Proxima of the Sacrament 



ABSOLUTION OF AN UNCONSCIOUS PERSON 



99 



of Penance are the actus poenitentis — contritio et confessio — and 
surely if these acts are not perceivable in any way, nor may be pre- 
sumed in any way at all, then absolution can not be given. This is 
plain if, according to the opinion of St. Thomas, we suppose the 
actus poenitentis as materia ex qua. But even if, with Scotus, we 
consider this actus only as materia circa quam, or as conditio sine 
qua non, the proposition is not different. For if the condition is in 
no wise fulfilled, nor can be presumed in any way as having been 
fulfilled, then absolution can not be given. 

The question, therefore, is whether there is still present in such 
dying person, in some way or other, the materia sensibilis sacramenti, 
or at least may be presumed to be present. St. Alphonsus gives 
this splendid answer: "Quod eo casu bene adest prudens dubium, 
quod moribundus vel ante destitutionem noverit suae damnationis 
periculum vel post destitutionem ad illud advertat in aliquo lucid o in- 
tervaUo, in quo pracsumitur velle et petere absolutionem signis vere 
sensibilibus , nempe per suspiria, motus corporis, saltern per anxiam 
respirationem, quamvis tunc ista signa Confessarius non percipiat 
(scl. ut signa certa) ; sufficient enini talia signa in tanta necessitate 
saltern ex prudenti dubio praesumta ad dandani absohitionem sub 
conditione." 

This holy teacher is of the opinion, therefore, that it may be sup- 
posed that the afflicted, either before becoming unconscious, or in 
lucid moments that broke unconsciousness, had aroused inward con- 
trition, and in some way or other (by sighs) desired to give exterior 
signs of his desire for absolution ; at least the opposite is not estab- 
lished. This supposition, though weakly supported, suffices for 
granting absolution conditio natim. As Billuart explains, this pro- 
cedure is justified not merely in the case of a dying person who has 
led a truly Christian life, but with all who have simply, by word or 



200 THE CASUIST— VOL. II 

deed, professed their Christian faith ; indeed, as St. Alphonsus him- 
self adds, even with those who have been stricken in actu pcccati, 
i. e., duclli, adnlterii. Hence to such a dying CathoHc can only then 
not be given absolution: "Qiiando nulla ratione dispositus prae- 
sumi potest et praesertini, quando post vitam absque Ude transactam, 
antequam sensibus destitueretur, sacerdotcm ad se accedentem con- 
tumeliose reiecit" ; or, briefly expressed, "de cujus indispositione et 
impoenitentia constat." 

Resp. ad. II. The answer is obvious from the preceding argu- 
ment : Caius acted correctly, but he should have granted absolution 
sub condiiione, which does not appear from his statement of the 
case. It was wrong on part of Titus to refuse absolution altogether. 
For even if this unfortunate man came to his state in actu peccati, 
he could still have been absolved sub conditione, all the more so be- 
cause the dying man perhaps actually through winking his eyes 
tried to make understood his desire for absolution. 

Resp. ad. III. It is true that according to St. Thomas the actus 
poenitentis form the materia of the Sacrament of Penance, and for 
this reason are as necessary for the administration of this Sacrament 
as water is for Baptism. But as, in extreme cases of need, one may 
employ a liquid for Baptism of which it may only be presumed cum 
tenui aliqua probabilitate that it is natural water, thus absolution 
may be given even if it can only be presumed cum tenui aliqua prob- 
abilitate that the dying man shows contrition. It corresponds per- 
fectly with the benignity of our Mother, the Catholic Church, if 
theologians teach that one may suppose the dying person desires, 
through sighs, tearful eyes, etc., to express his contrition; it is pos- 
sible at any rate, and the contrary is not established. Of course, the 
materia is valde dubia, but it is sufficient in such a case to grant 
absolution conditionally. 



ABSOLUTION OF AN UNCONSCIOUS PERSON 201 

We should like to add the following remarks : For the practical 
procedure with dying who no longer can give intelligible signs, there 
exists no difficulty. The priest can safely adhere to the opinions 
of moralists, who, at the present time at least, unanimously main- 
tain the principles above stated. According to this, every Catholic 
deprived of his senses, and near death, may be given absolution, at 
least sub conditione, indeed even if in actu peccati he became un- 
conscious. The exception only is the dying person, de cuius indis- 
positione constat; this would be particularly the case, as moralists 
hold, if the afflicted in question, just before he was deprived of his 
senses, refused to have a priest. Should, however, such a person — 
according to Lehmkuhl (II, n. 575) — in any way, for instance 
through pressure of the hand, imploring look, or some other sign, 
even though these be of doubtful nature, manifest a change of mind, 
then he may be absolved conditionally. One may indeed go even 
further : Even if this unhappy person had refused to see a priest and 
was then deprived of his senses, it is not improbable that an inward 
change of disposition takes place within him and that he desires to 
manifest the same ; the case is similar to one in which some one 
becomes unconscious in actu (altcrius) peccati v. c. duclli; although 
it is always more difficult to presume a change of disposition with 
those who just previously have rejected grace, still it is not an 
impossibility. Ballerini states (Compendium Th. M. II, n. 505a) : 
"Quod ahsolvi non debeat nee possit, qui mdla ratione dispositus 
censeri potest, diffitebitur nemo. Veruni cum dispositio pracsumi 
possit vel in ea, qui sensibus destituitur in ipso peecandi actu, vix 
apparet, quandonam futurum sit, ut nullo modo moribundus possit 
attritus pracsumi." If then, for instance, a sick man to-day refuses 
the priest, and the following day the priest finds him unconscious, 
the priest should not be censured if he should give (perhaps secretly) 



202 THE CASUIST— VOL. II 

absolution suh conditione, after reciting the respective acts, though 
he discovers no actual signs of a change in disposition. 

While the practical procedure ofifers no difficulties, yet, considered 
theologically, the matter is not so simple. If one adheres to the 
view of St. Thomas, now held as communis sententia: that the actus 
poenitentis are materia proxima of this Sacrament, there must, in 
order to warrant absolution, manifest itself, besides the interior 
contrition, also exterior contrition and accusation aliquo modo, so 
that a materia sensibilis Sacramenti be present; at the very least 
one must be able to presume aliqua ratione this materia sensibilis to 
be present. The interior dispositio, so theologians teach, may be 
presumed, in consideration of the mercy of God, and for the outward" 
manifestatio according to St. Alphonsus the anxia respiratio, sus- 
piria, ictus oculorum, etc., may be accepted. We may content our- 
selves with this, although I am under the impression many will not 
be convinced. For it may happen that a dying person lies there 
unconscious, quietly breathing ; shall I refuse him absolution for lack 
of suspiria, etc. ? Certainly not. There the opinion of St. Alphonsus 
does not entirely satisfy. I decidedly prefer to agree with other 
theologians who justify in another way the permission of absolution 
in such cases. They say a man who has lived a Christian life, or 
at least has remained a member of the true Church, seems thereby 
to have satisfactorily manifested exteriorly his intention to die as a' 
member of this Church, intending consequently to receive the last 
Sacraments. This manifestatio non expresse revocata suffices to 
enable his receiving absolution conditionally. Even the refusal to 
see the priest is not always identical with a renunciation of the 
Church; ergo: in the case where the priest has been refused, the 
argument of St. Alphonsus is more favorable. Those who favor 
the other argument must — as Lehmkuhl actually does — in order to 



ABSOLUTION OF AN UNCONSCIOUS PERSON 203 

be consistent, require such dying person to manifest exteriorly in 
some way his change of disposition. As, however, for this even 
doubtful signs suffice, i. e., pressio manimm, oculorum obtiitus 
(Lehmkuhl), there is after all hardly a difference. 

The demand that in order to warrant absolution the actus poeni- 
tentis must manifest themselves exteriorly, or that at least their 
manifestatio may be presumed in some way, applies at all events, if, 
after the scntentia communis, we consider the actus poenitentis as 
materia Sacramenti — the materia indeed must be sensibilis. It ap- 
pears to me that the matter would be different if, with the Scotists, 
we view the actus not as materia ex qua, but only as conditio sine 
qua non, or as necessaria dispositio ad sacramentum, "quae," as 
Ballerini adds (1. c, n. 506 C), "non necessario debet esse sensi- 
bilis." In order that the absolutio be valid the dispositio must be 
present, and in order that I may administer absolutio (licit e) this 
dispositio in general must show itself outwardly. But in an ex- 
treme case the Sacrament is effective, if only the absolutio is given 
and the interior contrition and desire to confess are present. After 
the scntentia communis, on the contrary, the Sacrament is not ef- 
fective, when the actus poenitentis qua materia sensibilis does not 
show itself outwardly. 

In order, therefore, to be able to give absolution to a dying per- 
son bereft of consciousness, I must, after the scntentia communis, not 
only presume the interna dispositio, but also its externa manifes- 
tatio; after the scntentia Scoti the praesumtio internae dispositionis 
suffices. That the latter is easier is quite evident, and for this reason 
I agree with Ballerini (1. c, n. 506 C), who, to the question which 
opinion would better justify the granting of absolution in our case, 
replies: aegre forte quis pahnam priniae (S. ThOxMas vel communi) 



204 THE CASUIST— VOL. II 

sententiae tribuet. Ballerini refers here to the argument of those 
who presume the anxia respiratio, etc., as materia sensibilis. 

I am aware that the otherwise ever reliable Lehmkuhl takes the 
other view, and even expressly states (Th. M., II, n. 512) that also 
according to the opinion of the Scotists, the externa manifestatio be 
considered pro essentiali conditione sacramenti validi. 

If therefore we differ from Lehmkuhl we do not wish to consider 
our argument as conclusively decisive, but hope that it may perhaps 
induce a more thorough discussion and solution of the question. 

Ignaz Rieder, D.D 



XL VIII. BAPTISM OF ILLEGITIMATE CHILDREN 

Antonia, unmarried, has had several children and another one is 
just born to her. Respectable persons in her neighborhood abhor 
her dissolute life, and only with great difficulty could sponsors be 
found for previous children. On that account she bids the father of 
the new born child: "We shall not bother about sponsors, for you 
may go along as such." This the father did and he became sponsor. 
Subsequently this couple married, in another church ; no one had any 
suspicion of spiritual relationship. A few weeks after the marriage 
the pair appear before the priest who baptized the last child to have 
it legitimized. 

A glance at the baptismal register informs the priest of the whole 
situation ; he inquires about the spiritual relationship and finds that 
no dispensation has been obtained; the marriage, therefore, is null 
and void. The convalidation of the marriage was not difficult, and 
took place in accordance with the rules ; nothing further need be 
said about it here. The case is submitted only to suggest caution in 
baptizing illegitimate children, and to inquire whether some pre- 
cautions should not be employed in Baptisms of this kind, in order 
to prevent such contingencies ; also whether, by omission of some 
ceremonies, such parents at the Baptism of their children should be 
impressed with the Church's detestation of their sin. 

The ecclesiastical law does not prescribe precautionary measures 
nor omission of ceremonies. The Church gives the priest a free hand 
in these matters. But I am of opinion it would not be against the 
spirit of Canon Law, which imposes irregularity on the illegitimate 
birth, if the priest, with due prudence, determines upon some disci- 

205 



2o6 THE CASUIST— VOL. II 

plinary measures within lawful bounds. The moral sentiment of 
the community would certainly thereby be benefited. 

In many localities only a woman may become sponsor at the 
Baptism of illegitimate children. This would exclude the occur- 
rence of a case like ours. This usage is not contrary to the Triden-' 
tine, which is satisfied with one sponsor. In some parishes illegiti- 
mate children — urgent cases excepted — must be brought in the 
evening for Baptism, In cities and manufacturing centers it may be 
difficult to carry out such measures, but in country parishes they can 
be carried out, and have frequently been carried out — as priests have 
told me — with good success. 

Alois Pachinger, D.D. 



XLIX. PASTORAL PRUDENCE 

About this virtue, so necessary in our difficult times, there can not 
be too much said or written. Needless to say, pastoral prudence 
consists in the priest's capability and skill to view circumstances and 
conditions objectively, and to employ the means at his disposal that 
in all he does or avoids to do, especially in difficult and delicate cases, 
he promotes and achieves the aims of his office. 

The sentence of Holy Scripture : "Initium sapientiae timor 
Domini" (P. no, 9) finds full application upon pastoral prudence. It 
points out one of the fundamental conditions without which there 
can be no genuine pastoral prudence. For holy fear is interior 
reverence, pious deference to God and respect of His holy Will, and 
it leads to conscientiousness, to a blamelessly moral, even perfect, 
life. Only a morally irreproachable priest can possess pastoral 
prudence ; the more perfect his virtue, the more will his prudence 
increase. Of the opposite, Holy Writ tells us : "In animam malevolam 
non introihit sapientia, ncque habitabit in corpore subdito peccatis" 
(Sap. I, 4). There belongs also to the priest's moral rectitude con- 
tinuous study, as the fulfilment of a positive obligation of his state of 
life. 

Where these fundamental conditions prevail, there also will the 
virtue of prudence find an agreeable abode in man, and will be 
bestowed if solicited. 

The particular foundations of prudence are modesty and humility, 
its chief obstacles self-satisfaction and conceit. Abscondisti a sapien- 
tibus et revelasti parvuUs. The modest and humble man will not 
jump at his first conclusions as the correct and infallible ones, he will 
distrust himself and use mature deliberation. Of this deliberation 

207 



2o8 THE CASUIST— VOL. II 

St. Bernard writes : "Prudens pastor omne opus suum trina quadam 
consideratione praevcnict. Priimim quidcm, an liceat, deindc, an 
deceat, postrcmo, an ct cxpediat. Nam ctsi constct in Christiana 
utique philosopJiia, nan dcccrc, nisi quod licet nan cxpcdirc, nisi quod 
decct et licet: non continuo tamcn omne, quod licet, deeerc aut 
expedire conseqnens erit." The modest and humble man will not 
content himself, in difficult and delicate cases, with his own delibera- 
tion ; he will seek, and listen to, the views of others, their opinions 
and counsels. On this subject St. Bonaventure has this to say: 
{De Sex alls) "It is a great act of wisdom to accept advice readily, 
and to ask for it modestly. Thereby a superior attains a threefold 
advantage: he gains, first of all, a greater certainty — if others are of 
the same opinion — that he does not err ; secondly, he is less liable to 
blame, if he does not succeed in what he has done after listening to 
the counsel of prudent and righteous men ; thirdly, as reward for 
his humility he will receive a special enlightenment from God in 
order to avoid unforeseen obstacles and to find appropriate means. 
Furthermore those whose opinion or advice he has secured will sup- 
port him, and will defend his course, whether or not it is attended 
by good results," 

It is not absolutely necessary that he, whose opinion or advice we 
seek, should be specially distinguished in knowledge and experience. 
He who is not personally, or only slightly, interested in a matter 
often sees in it some circumstances that escape the one deeply con- 
cerned in the same. It will not be beneath the dignity of a learned and 
experienced parish priest, in difficult and delicate cases, or when 
introducing reforms, to ascertain his young curate's views. This 
will also tend toward the instruction of the younger priest ; at any 
rate the superior will avoid the dissatisfaction of the curate, and 
avoid his expressing disapproval to parishioners, if the parish priest 



PASTORAL PRUDENCE 209 

makes changes In the pastorate which become known to the curate 
only as a fait accompli, especially if new duties for the curate are a 
result of the innovation. 

Canon Anthony Skocdopole, D.D. 



L. INVALID SPONSORSHIP 

Maria, a Catholic girl, has had improper relations with Hermann, 
a Hebrew, which remained not without consequences. At the Baptism 
of her first child three members of her family were present, the 
elder brother in the capacity of sponsor. Some time after, Maria's 
family severed all connection with Maria, because she persisted in 
her resolve to marry the Hebrew Hermann. The latter accepted the 
Catholic faith in order to marry Maria. Soon after a second child 
was born to them without Maria's family knowing anything about it. 
As there was no sponsor at hand, Maria had her younger brother 
entered as sponsor, and afterward informed her elder brother of the 
fact, who, in turn, acquainted the younger brother of the honor that 
had befallen him. As there seemed nothing else to do the latter 
declared himself willing to assume the sponsorship, which his sister 
had imposed upon him without his knowledge or desire. Is this 
sponsorship valid in facia ecclesiac? 

Anszcer. No. The sponsorship can of course take place per 
prociiratorcm, but the actual sponsor must be made aware of his 
appointment, give his consent thereto, appoint the proxy, or direct 
the appointment to take place through another ; for the position of 
sponsor imposes certain obligations, the voluntary assumption of 
which requires a foreknowledge and assent as most necessary con- 
ditions. This is the self-evident teaching of all moralists ; thus Lehm- 
KUHL (Theol. Mor., H, n. 758) : Requisitur pro patrinis, ut valide 
fuerint patrim; igitur ut hahuerint animmn gerendi miinus patrini. 
GoEPFERT, in his Moral Theology, HI, p. 52, declares : "In order that 
some one really be sponsor, and assume spiritual relationship, it is 
requisite that he or she should have the intention of undertaking the 



INVALID SPONSORSHIP 211 

sponsorship ; hence it is not contracted in an error in corpore, if there 
is a mistake in the one baptized, or if some one has been appointed 
to be a sponsor against his knowledge or wish, and only afterward 
apprised of the fact. Esser holds : "It is permissible for the sponsor 
to have a proxy at the sacramental act; he must, however, have 
knowledge of his selection as sponsor, and have the intention of 
becoming sponsor; otherwise spiritual relationship does not exist." 
Since the brother had not the least idea that he was named as 
sponsor, since, moreover, in consequence of the severed relations, not 
even his consensus pracsiunptns could be supposed, there can be no 
question of a valid sponsorship. The subsequent consent to the 
condition of things has no lawful effect as the sponsorship occurs in 
ipso actu haptismi, and at this moment also the consent must be 
present; a kind of sanatio in radice per subscqueutum consensum is 
impossible, as the act of baptizing, to which the sponsorship is at- 
tached, no longer lasts ; here may be applied the inversion of the 
axiom : Infectnm factum fieri nequit. 

J. Gfollner, D.D. 



LI. TELEPATHIC PHENOMENA 

P. Lodiel, S.J., published, in the Etudes des Peres Jesuites (Oct. 
5, 1900, p. 49), a very interesting treatise on telepathy. The author 
states first of all that in recent times telepathy has again received 
much attention, and refers for France to the Annales des Sciences 
Psychiques, for Italy to the Civilta Cattolica, for England to the 
Proceedings of the Society for Psychical Research, etc. The most 
important work on telepathy is that by Gurney, Myers and Rod- 
more {Phantasms of the Living), which appeared in London in 1890. 
Scholars of various philosophical and religious views are of the 
opinion that the phenomena recorded in this work, probed most 
thoroughly and confirmed by reliable witnesses, can not be doubted. 
Of the many phenomena there recorded we can, for lack of space, 
only quote a few. 

In the year 1855 Captain Colt, whose brother Oliver took then 
part in the siege of Sebastopol, had the following apparition: "In 
the night of September 9," so Colt relates, "I was suddenly awak- 
ened, and beheld by the window of my room, quite close to my bed, 
my brother in a kneeling posture. I thought at first it was an 
illusion, caused perhaps by moonlight. But as I glanced at my 
brother again I saw that he was looking at me with a loving, yet sad 
and imploring expression in his eyes. Thereupon I arose and stepped 
to the window to investigate. I convinced myself that there was no 
trace of moonlight, on the contrary it was quite dark and rain lashed 
the windows. I turned around and had my brother again before me, 
looking sad and imploring help. I noticed then a wound in his right 
temple, whence blood flowed copiously. His face was pale as wax. 
It was a vision," says Mr. Colt, "which I shall never forget to the 



TELEPATHIC PHENOMENA 213 

end of my days." A fortnight later news came from the Crimea 
that in an assault Oliver Colt was struck by a bullet in the right 
temple ; thirty-six hours after his fall he had been discovered among 
a heap of corpses, in a kneeling posture. 

A similar occurrence was reported during the Mexican war. One 
morning the mother of a young officer was seen to weep bitterly. 
When asked the reason of her grief she said : "Alas ! I am to lose my 
son. This morning, as I greeted his portrait, as was my daily cus- 
tom, I saw that one of his eyes had been shot out and blood was 
streaming over his whole face." Soon after they were informed of 
this officer's death. He had fallen at the siege of Puebla, shot in 
the left eye, at the very time that his mother had had the apparition. 

Still more remarkable is the following occurrence : Young Philip 
Weld was a pupil at St. Edmund's College, near Ware. He was a 
well behaved, good boy, and for this reason greatly beloved by his 
teachers and fellow students. On April 16, 1845, i^ vacation time, 
some of the boys went for a row on the Ware. Philip had finished 
a retreat and received Holy Communion that morning. He gladly 
joined those who made up the boating party. On the return trip of 
the boat Philip asked for an oar to do his share of the work, when 
a sudden turn of the boat threw him into the water, and all efforts to 
rescue him were in vain. Philip's corpse was carried back to the 
college. Dr. Cox, the rector, was inconsolable over the accident ; 
he had loved the boy dearly and he thought of the anguish of the 
family at losing so beloved a son. He decided to go and break the 
sad news to the bereaved parents. The following morning he drove 
for this purpose over to their home at Southampton. As he neared 
the house the father came out to meet him. Dr. Cox alighted and 
was about to address him, when Mr. Weld anticipated him, saying : 
"It is useless to conceal anything from me, I know that my son Philip 



214 THE CASUIST— VOL. II 

is dead." "How is that possible?" asked the priest. "Last even- 
ing," repHed Mr. Weld, "I went for a walk with my daughter 
Catharine. Suddenly I beheld my son, passing on the opposite side 
of the street in company with two persons, one of whom was garbed 
in black. My daughter saw him first. She exclaimed : 'Oh, father ! 
did you ever see any one who so closely resembled our Philip?' 
'Resembled Philip?' said I; 'why, it is Philip himself.' We crossed 
over toward the three men and I saw Philip happily smiling at the 
one dressed in black. As we came closer all three suddenly vanished. 
On my return to the house I said nothing to my wife about the 
apparition so as not to frighten her, but the following day I awaited 
with great anxiety the mail. To my great joy there was no letter 
for me and my fears began to be allayed. Then I saw you coming 
toward the house. Now I know that you have come to tell me of my 
dear son's death." One may imagine Dr. Cox's amazement! He 
asked Mr. Weld if he had ever before seen the man in black. 
"Never," replied Mr. Weld, "but his features are so impressed upon 
my mind that I should certainly recognize him, if I were to meet 
him again." 

Dr. Cox then related the story of the sad event, which had oc- 
curred precisely at the hour in which the father and daughter had 
seen the vision. The remembrance of the glad smile of their loved 
one afforded them great consolation. Mr. Weld arranged for his 
son's funeral, and at the burial he closely examined the faces of the 
clergy; but none of them resembled the black figure of the vision. 
Four months later Mr. Weld went with his daughter to visit a 
brother who dwelt at some distance. Incidentally he called on the 
local clergyman. While waiting in the reception room he inspected 
the pictures on the walls. Suddenly he stopped before one of them 
— there was no name on it — and exclaimed : "This is the man who 



\ 



' TELEPATHIC PHENOMENA 8 15 

was walking with Philip !" The priest, who now entered, said the 
picture was that of St. Stanislaus Kostka. Mr. Weld was deeply 
moved ; he remembered his son's special devotion for St. Stanislaus ; 
he thought also of how his late father had been a great benefactor of 
the Jesuits and hoped that the saints of that order would in a special 
manner protect his family. 

It should be noted that both father and daughter asserted they had 
never before in their lives had visions or hallucinations ; furthermore 
the apparition did not occur at night, not in a dream, but in bright 
day light, in a public street, to two different persons, thoroughly 
credible, at one and the same time. 

In the year 1898 there took place in New York a double appari- 
tion, the same person showed himself in two different remote places, 
at the same hour. H. M., as is related, awoke suddenly one night 
and saw before him his brother (who lived at a distance). The latter 
greeted him and said : "I am dying ; you are to dispose of my fortune 
in the following manner," then, having given full particulars of the 
disposition, the vision vanished. H. M. informed his wife of what 
happened. A few hours later a telegram was received announcing 
the death of the brother; it had occurred at the time of the vision. 
H. M. started out at once to carry out the wishes of the departed 
brother. On the way he meets another brother, from another town. 
He, too, had had the same vision, at the same hour and with the same 
details. Arrived at the place of death they were told that the de- 
parted shortly before his demise had, as if in delirium, conversed for 
some time with absent persons. 

How are we to explain these and similar phenomena ? Some seek 
to explain them as a morbid, nervous, hysterical condition. But the 
persons to whom these apparitions happened were in perfect health'. 



2i6 THE CASUIST— VOL. II 

How can the sick, the dying, at such distances produce perfectly plain 
pictures, intelligible conversations? 

Still less does the matter admit of explanation through hypnotism, 
suggestion, or magnetism. No one was near to influence the persons 
who have had these visions, and who could exert any such influence 
at such great distance ? Nor has spiritism any explanation to offer. 
In all these cases no one asked for information, or did anything to 
obtain it, such as is done in spiritism; the information was offered 
unsolicited. Nor was there any medium to negotiate connection 
parties. Moreover the dead have not the gift of speech, and the 
Catholic Church rightly teaches that there is no natural connection 
between the dead and the living. For this reason she has at all times 
constantly discountenanced the summoning of departed to satisfy 
curiosity. Even ardent spiritists like Allan Kardec, Eliphaz, Levi, 
Alexandre Aksakoff, admit that the dispositions of summoned spirits 
often are treacherous and immoral, a fact which demonstrates a 
co-operation of evil spirits. 

Others, like Mr. Cookes, who attempt to explain everything by 
matter, presume that from the human brain innumerable vibrations 
are propagated in all directions and that these vibrations bring about 
such visions. But, let us ask what healthy person has ever had the 
power to produce such visions ? How could the sick and dying alone 
have it? And how is it that the vibrations just reach the concerned 
person and none other? 

There must, therefore, be supposed something supernatural. Only 
thus the image of living persons and their conversations can be ex- 
plained. What then is this supernatural element? In spiritism evil 
spirits without doubt participate ; this is admitted even by spiritists 
themselves, as stated above. In telepathy this is not the case, as 
frequently something good, providential, sacred even, proceeds there- 



TELEPATHIC PHENOMENA 217 

from. We are confirmed in this view when we see in the Lives of 
the Saints that such visions occurred to them. Thus, for instance, 
in the Hfe of St. Francis de Chantal we read that at the time when 
the Baron was dying, his sick father, many miles from the Baron's 
deathbed, beheld a number of fine looking youths leading his son into 
a distant country. The son approached the father, and touched him 
gently upon the shoulder, as if to take leave from him. The vener- 
able old man said under tears: "My son is dead!" A servant, 
despatched to make inquiries, met the messenger bringing the news 
of the death. It was found that the son had died precisely at the 
moment when the vision appeared to the father. 

At one time when St. Alphonsus Liguori was preaching in the 
small town of Arienzo, he suddenly interrupted his discourse and 
said to his congregation : "Let us pray an Our Father at the peaceful 
passing away of Bishop Lambertini of Caserta." A few days later 
news came that the bishop had died exactly at the time when St. 
Liguori interrupted his sermon. 

In the process of beatification of St. Philip Neri various instances 
were vouched for by credible witnesses, that the saint had beheld 
friends and disciples ascending into heaven. 

In the year 1570 forty Jesuits embarked at Lisbon to go to Brazil 
as missionaries. Near the Island of Patmos they were captured by 
Calvinistic pirates and cruelly put to death on account of their 
faith. At the same hour St. Theresa beheld forty martyrs with palms 
in their hands and surrounded with glory (among them was a cousin 
of hers) ascending to heaven. She mentioned this vision to several 
persons. 

Similar visions are found in lives of many saints. The intention 
of God in them is probably the glorification of His faithful servants, 
the consoling of the bereaved and the strengthening of them in the 



2i8 THE CASUIST— VOL. II 

faith. These visions are incontestible proof that there is a higher 
immaterial world and that between the higher and the lesser world 
there exists relation, as even the English Society for Psychical Re- 
search is forced to admit. The materialists of our day would deny 
the existence of the soul after the death of the body. Telepathy 
offers facts which can not reasonably be doubted, and which not 
only prove that with death not everything is at an end, but even give 
us some information about the fate of souls after death. 

J. Raef. 



LII. THE JURISDICTION TO HEAR CONFESSIONS 

Caius, an alumnus, is sent from his seminary to a parish not far 
away to assist on a feast day. It being Paschal time, Caius received 
from the bishop jurisdiction to hear confessions, but explicitly for 
this day only. Caius therefore heard confessions, held services and 
made ready to return to the seminary. But suddenly the parish 
priest is taken ill, and he asks the alumnus to remain another day, 
because on that day also will people come to confession. Caius 
objects that he has jurisdiction only for this one day, but the parish 
priest says : "I will give you jurisdiction. I have iurisdictio ordi- 
naria and can therefore delegate you, the same as I could for as- 
sistance at marriage. Of course I can only delegate you for my 
parishioners, not for the diocese as the bishop can. You will have 
potestas ordinis through Holy Orders and iurisdictio delegata from 
me." This argument does not quite convince Caius, for if that were 
so, he thinks, for what purpose did the bishop restrict his jurisdiction 
just to this particular day? Yet, he satisfies his conscience by 
reasoning: This is a case of necessity, and if the bishop knew of it 
he would most certainly give me jurisdiction; I may then rightly 
presume the jurisdiction. 

In the worst case — he reasons further — there prevails error com- 
munis so that the Church supplies the jurisdiction if absent. He 
remains, hears confessions the following day, and returns to his 
seminary. 

Questions. — I. What is to be thought of the parish priest's argu- 
ment, and what of the arguments of Caius ? 

II. Were the absolutions given by Caius valid or not? 

In order that the absolution in the Sacrament of Penance should 
2ig 



220 THE CASUIST— VOL. II 

be valid, there are necessary for the priest hearing confession, besides 
potestas ordinis, also approbatio and iurisdictio. The approbatio is 
the authoritative declaration that the priest in question is capable, 
scientifically and morally, of hearing confessions, the iurisdictio is 
here the bestowal of the faculty to render decisions pro foro interno. 

That approbatio as well as iurisdictio are necessary is evident from 
the Tridentine (Sess. 14, cap. 7, and sess. 2;^ de ref. cap. 15), 
iurisdictio is necessary iure divino, approbatio however iure ecclesi- 
astico, as the latter was first introduced by the Tridentine. Although 
frequently both are given to the priest uno eodemque actu, yet it is 
necessary in many cases that approbatio and iurisdictio should be 
precisely distinguished. Naturally approbation precedes jurisdiction, 
for only to the priest declared capable are assigned certain faithful 
as siibditi, over whom he is to exercise jurisdiction. Presuming as 
known the terms iurisdictio ordinaria and delcgata we will pass on 
to answer the questions. 

Ad. I. The parish priest's argument is not valid. Of course he 
himself has iurisdictio ordinaria and can, if nothing prevents, dele- 
gate another priest, for instance to perform marriage. But for hear- 
ing confession there is not merely iurisdictio necessary, but also 
approbatio, and the latter per Episcopum loci. 

Caius had received approbatio and iurisdictio uno actu from the 
bishop, but only for one day, for the second day both were lacking to 
him. The parish priest could not give jurisdiction to Caius because 
the approbation which the Tridentine requires was lacking. Previous 
to the Tridentine the matter would have been different. The matter 
is stated by Lehmkuhl (II, n. 371) as follows: Quamquam ex 
natnra rei quilibet, qui ordinariam potestatem habeat, earn alteri 
communicare potest; nihilominus suprema auctoritate ecclesiastica, a 
qua tandem omnis iurisdictionis exercitium atque valor pendet, ita 



THE JURISDICTION TO HEAR CONFESSIONS 221 

constituhim est, ut nemo delegatam iurisdictionem in S. poenitentiae 
tribunali excrcere possit — saltern quoad confessiones saecnlarium — 
nisi approhationem ah Episcopo (loci) acceperit. Quo factum est, tit 
delegatio ah Us, qui Episcopo inferiores sunt, data sen danda fere 
inutilis evaserit. 

Since the approbatio per Episcopum loci is always necessary, a 
parish priest can not delegate a priest, who has approbation and 
jurisdiction in another diocese, to hear confessions. Exempt from 
this law are only the parish priests themselves (and a fortiori the 
bishops) in regard to their subditi, so that they can hear their 
parishioners' confessions also in another diocese without approhatio 
per ordinarium loci, because the Tridentine itself excepts from this 
law those in possession of a parish benefice. 

Now let us pass to Caius' views. He beHeved he could with per- 
fect right presume the iurisdictio. But — and this is taught unani- 
mously — the approhatio and iurisdictio can not be presumed. For 
the validity of the absolution the Tridentine requires an approhatio 
actu cxistens and hence an approbatio praesnmta suffices not at all, 
no matter how probable or certain it may seem that the bishop would 
grant it. "Approbatio, quae ad validam confessionem rcquiritur, 
vere data (et confessario notiUcata) esse debet, non suiUcit prae- 
sumptio approbationis dandac" (Lehmkuhl, II, n. 384, 4). If a 
priest therefore desires an extension of his jurisdiction from the 
bishop, he must not, no matter how certain it may be that the bishop 
will grant the extension, hear confessions before receiving positive 
information (written or by reliable messenger) that the jurisdiction 
has been prolonged. 

Perhaps in Caius' favor is his last argument, that there is an 
error communis and that therefore the Church supplies the defect. 
The question is, when does the Church supply the lacking jurisdic- 



22« ' THE CASUIST— VOL. II 

tion ? Theologians give a unanimous answer to this : Ecclesia sup- 
pi et, si adest titulus color atus et error communis, but both must be 
present at the same time. The titulus coloratus is present if, though 
the exterior act through which jurisdiction is bestowed, has taken 
place, it is invalid on account of a secret fault, for instance if ex- 
teriorly a parish were quite lawfully assigned to a priest, but the 
entire act were invalid on account of secret simony. If the juris- 
diction has not been given at all, or if, though given validly, it has 
already expired, yet the people suppose the priest has jurisdiction, 
then there is present titulus putativus, together with error communis. 
It is plain that in our case Caius had no titulus coloratus, but only 
putativus, i. e., there is present therefore error communis sine titulo 
colorato. 

For this case the theologians hold: Si adest putativus et error 
communis, non est certum, an Ecclesia suppleat. Lehmkuhl writes 
thus : "Si sine titulo colorato solum error communis adest, multi 
quidem putant Ecclesiam propter commune bonum, cui potissimum 
publica auctoritas provideat, etiamtum supplere; et quum nullam 
legem ecclesiasticam habeamus, quae id fieri statuat, neque consensus 
Doctorum adsit, totum dubium manet." 

Ad. II. From the aforesaid there follows the answer to the sec- 
ond question and this answer is: It is not quite certain that the 
absolutions given by Caius on the second day were valid. For, 
although Sabetti, S.J., says (Compendium Theol. Mor., n. yy^,) : 
" Probabiliter etiam supplet Ecclesia, si adsit error communis sine 
titulo colorato, sed cum titulo tantum existimato (= putativo). 
Eadem enim urget ratio ac in casu praecedente, cum etiam in hac 
hypothesi innumerae animae perire possint. Ita multi et graves 
Jtheologi apud S. Alphonsum, n, 572; and although A. Eschbach 
(Anal. Eccl., 1897, p. 505) writes: "Jam vero sententia probabilior 



THE JURISDICTION TO HEAR CONFESSIONS 223 

tenet, Ecclesiam supplere, si error adsit communis etiam sine titulo 
colorato. Caeteroquin in materia sumus favorahili in qua ampliatio 
datiir," by all this we do not get beyond the prohahilitas, and where a 
Sacrament is concerned, prohahilitas is of little use to us (extreme 
cases of necessity excepted), what we need is certitudo. 

What is to be said of Caius' action ? Objectively he has committed 
a grievous fault. It is not even allowed to hear confessions, though 
titulns coloratus and error communis are present and the Church 
therefore surely supplies the defect, when one knows he has no juris- 
diction, but only a titulus coloratus. Even more unlawful is it if 
only error communis is present, when it is not certain that the Church 
supplements. "A fortiori non licet illi, qui omni potestate eiusque 
titulo se destitutum novit, propter solum errorem communem agere, 
tum quia usurpat potestatem, quam non habet; turn quia cos, quorum 
interest ipsius actum validum esse, periculo atque damno exponit" 
(Lehmkuhl). To what extent Caius was at fault subjectively, we 
are unable to determine, but it must be admitted that he took the 
matter too lightly. 

The claim will hardly be made that there was a prohahilitas of 
valid absolutions, and that cum iurisdictione prohabili one could 
lawfully absolve. The answer to this would be : In our case there 
was not only iurisdictio probahilis absent but there was nulla iiiris- 
dictio, probable it is only that the Church supplied the defect. 

Finally, the question suggests itself, what was to be done after 
Caius discovered his error? Were the people to be informed that 
they were only apparently absolved, and that they were obliged to 
procure certain absolution? This question is by Berardi {Praxis 
Confess., n. 1053, IX) answered thus : "There exists no obligation in 
general to compel the faithful to repeat confessions made hona Me" ; 
and in support Berardi refers to the decision by the Congr. Concilii, 



224 THE CASUIST— VOL. II 

of December ii, 1683. The matter is to be left at rest; in the worst 
case the faithful will have these sins indirectly remitted in their 
next confession. It would be different if the faithful themselves 
found out that these confessions were of doubtful validity. Some 
theologians are of the opinion that even in this case the faithful 
need not be required to repeat their confessions, but the decision 
quoted by Berardi says: Si ipsi confessi hoc resciverint vel ed de 
invaliditate confessionis dubitaverint, eosdem teneri reiterare con- 
fessionem. 

Ignaz Rieder, D.D. 



LIIL A MUSICIAN'S CO-OPERATION BY PLAYING IN 
PROTESTANT CHURCHES AND AT DANCES 

In a small town there is an orchestra of which Torquatus is a 
member. He is a man with family and obtains his sole income from 
this profession, making a fairly good living. He is often called upon 
to play at Protestant funerals, also at dances — not infrequently im- 
modest dances. The leader of the orchestra declares that Torquatus 
must play at all engagements or be dismissed. Torquatus, a con- 
scientious Catholic, asks his confessor what to do under these cir- 
cumstances. What answer should be given him? 

If Torquatus can find other employment, by which he can support 
his family respectably, he should be advised, without doubt, to quit 
the orchestra. If this is not possible, then the question is whether 
the situation excuses him in co-operating, in the manner mentioned, 
at Protestant funerals and at dances. The twofold danger, of injur- 
ing his own soul and of giving scandal to others and co-operating 
in their sins, appears to prohibit him from so doing. 

As regards the actual danger it should not be difficult for a con- 
scientious father of a family to render this danger very remote, 
especially by purity of intention and by vigilance and prayer. 

His participation in an act of non-Catholic worship, and in the 
sins of others on the dance floor, appears to be more important. For 
this reason these two points may receive closer attention. 

I. As regards playing at Protestant funerals, a distinction must 
be made as to whether the co-operation must be regarded as formal, 
or merely as material. Such participation is formal if it forms part 
of the forbidden ritual, or if it is part of the same, as for instance 
playing the organ, or singing at non-Catholic services. In such cases 



226 THE CASUIST-VOL. II 

the participation can not be excused for any necessity whatever, be- 
cause it is essentially wrong. In this sense moralists prohibit Cath- 
olics from singing, making responses, or playing the organ at non- 
Catholic services (Compare Marc, n. 433 (2) ; Lehmkuhl, n. 656). 

If the orchestra, of which Torquatus is a member, plays funeral 
marches, etc., at Protestant funerals, the same as at other purely 
profane occasions, this co-operation can as little be considered as 
formal participation as that of mourners accompanying a funeral; 
both could be considered only material participation, for this reason 
taking part in a Protestant funeral procession is allowed for just 
reasons, for example as an act of civic decency. "Funus deducere 
usque ad fores templi vel coemeterii censetur civile ohsequium 
(Marc, n. 432, 2). And (Lehmkuhl, n. 656, 2), permits "Instru- 
mentorum musicorum concentus inter rituni quidem religiosum, sed 
non ut ejus pars vel ornamentum, sed e. g. in honorem principis 
acatholici praesentis." 

2. The second question is whether Torquatus' musical co-operation 
at dances — not infrequently immoral dances — is not formal co- 
operation, and as such positively forbidden. "Co-operatio formalis 
ad peccatum alterius semper intrinsice mala est, atque ideo num- 
quam licita" (Aertnys, I, II, n. yy). The same authority says: 
"Co-operatio formalis est vel ex -fine operis ex Une operantis" 
(n. 76). The latter is evidently not the case with Torquatus, who 
certainly does not intend the sins of others. As regards the finis 
operis the rule is : "Co-operatio est formalis, quae concurrit ad malam 
voluntatem alterius praestando operant, quae suapte natura ad malum 
ordinata est vel pars illius est." It would be difficult to establish 
that the playing of a musical instrument, even in the rendering of 
an immodest piece, is to be considered as an act quae suapte natura ad 



A MUSICIAN'S CO-OPERATION 



227 



malum ordinata vel pars illiiis est. It would be quite another matter 
with the singing of shameful songs. 

Even if we admit that the co-operation of Torquatus is merely 
material and therefore in case of need not in itself prohibited, yet it 
appears that his co-operation at such dances is a grave scandal to 
all who learn of it, this so much the more as he is looked upon as a 
righteous man. This aspect is not to be overlooked, and for this 
reason Torquatus is obliged without doubt to prevent, as far as 
possible, such scandal by making known in his circles that he only 
unwillingly and under pressure of circumstances plays at Protestant 
funerals and at questionable dances. If he does this then he is 
hardly obliged, for fear of giving scandal, to quit the orchestra, "cum 
charitas, vi cujiis scandalum tollerc deberet, non ohliget cum tanto 
incommodo" (Aertnys, n. 317). 

Although in the interests of morality it were greatly to be desired 
that hall keepers, and others, who arrange dances and amusements 
dangerous to morals, were unable to find musicians and dancers, 
yet we must not impose this as duty upon an individual as in the case 
of Torquatus, when the principles of morals do not appear to compel 
under such great difficulties. 

P. John Schwienbacher, C.SSJl. 



LIV. FORGETTING TO GIVE ABSOLUTION 

Caius was called to a dying person to administer the last Sacra- 
ments. He heard the dying man's confession, gave him Holy Com- 
munion, Extreme Unction and general absolution. Only after re- 
turning home did it occur to him that he had forgotten to give 
sacramental absolution. Again he went to the sick man, made with 
him an act of contrition and, without saying anything to him about 
absolution, pronounced the words of sacramental absolution over 
him. 

Did Caius act correctly? Or rather let us ask: i. Was Caius 
bound to return and absolve the dying man? 

2. Was the absolution by Caius valid, although more than an hour 
had elapsed between confession and absolution? 

3. Should Caius not have informed the sick man that he was now 
absolving him, in order to make the absolution valid? 

The answer to all these questions is simple and requires only a 
brief argument. 

I. The duty of absolving the dying validly, is based upon two 
reasons, firstly, to make sure, as far as possible, the eternal salva- 
tion of the dying ; and, secondly, because according to divine law the 
sins of baptized, where possible, must be subjected to the power of 
the keys. 

This subjection has its final in the sacramental absolution; the 
divine law therefore has not found its accomplishment when the 
penitent has confessed his sins, but then only when the priest has 
absolved the confessed sins by direct exercise of the power of the 
keys. The fulfilling of this divine command is particularly urgent 
in danger of death; for this reason then the duty of the sinner to 



FORGETTING TO GIVE ABSOLUTION 229 



confess, and the duty of the priest to absolve, become most im- 
portant. 

In our case the penitent had fulfilled his part ; the confessor 
through an oversight had not fulfilled his. Undoubtedly he must 
repair the defect unless he be excused by an important reason. If 
only the priest's duty is considered, the question whether the time 
it w^ill take to return may be a sufficient reason for an excuse must 
depend upon the distance, and also upon the fact whether other press- 
ing business would be delayed by returning to the patient. The 
reason for an excuse in this direction need not be a very weighty one. 
Of more weight will have to be the ground for excuse if solicitude 
for the greater safety of the sick man's salvation comes into con- 
sideration. Should the least doubt arise as to this safety, the defect, 
although unintentional, must be rectified even at the cost of con- 
siderable inconvenience. The question is then, do Holy Communion 
and Extreme Unction offer sufficient certainty? 

With regard to Holy Communion its effect to sanctify those who, 
without their fault in the state of sin, receive it with previous attri- 
tion, is probable but not certain. Caius therefore can not excuse 
failure to return to the dying man with the fact of having admin- 
istered the Holy Eucharist. In regard to Extreme Unction its effect 
is morally certain (Compare the author's Theol. Mor., II, n. 568). 
As, however, some authors raise doubt even regarding this Sacra- 
ment, then these doubts, even if very feeble, are sufficient reason in 
Caius' case to decide upon bestowing the absolution, especially in the 
case of a dying man, when the maxim should apply: Nulla sat magna 
securitas, itbi periclitatitr aeternitas. 

2. That an interval of one hour elapsed between confession and 
absolution does not make the latter invalid. The relation of matter 
and form is to be determined variously according to the nature of the 
different Sacraments. Just as in profane courts accusation, trial 



230 



THE CASUIST— VOL. II 



and sentence do not necessarily take place in one session, neither is 
this necessary in the tribunal of penance ; although a long interval — 
as lawful in the former — would not always be without danger in the 
latter case. St. Alphonsus, referring to the opinion that absolu- 
tion is valid even an hour after confession, says (lib. 6, n. 9) : 
"Videtur accepta esse apud omnes." 

3. The words just quoted refer to the absolution administered to 
the penitent without further advice or act ; there was even greater 
certainty since Caius again awakened contrition with the dying man. 

As far as the connection between matter and form of the Sacra- 
ment is concerned, all doubt as to its validity is precluded. Doubt 
of its validity could only arise in the event that perhaps the penitent 
meanwhile had committed a grievous sin. In that case of course 
another confession and a new conscious intention must enter for the 
reception of absolution. But in our case we may regard this sup- 
position as excluded, because the probability is that the sick man 
would have accused himself of it. Nevertheless Caius would have 
done well to admonish the patient that he was about to absolve him. 
(No need to mention his previous forgetfulness.) There is nothing 
unusual about a repeated absolution of the dying. As, however, it is 
a matter of the actual reception of the Sacrament, it is always appro- 
priate that the recipient actu be aware of it, when he will receive it 
with greater devotion, and consequently with greater fruits, unless 
there are weighty reasons against. Caius hardly committed a fault 
in not observing this method, yet it would have been better, if 
feasible, to make the sick man aware that absolution was being 
given. 

Aug. Lehmkuhl, S.J. 



LV. SIMPLE VOWS AND RESERVED CASES 

At a gathering of regular clergy the point was argued : "an sim- 
pliciter professi inciirrant casus in Ordine rescrvatosf" As no gen- 
erally satisfactory answer was given I will essay to present a few 
data which may contribute toward elucidation and solution of this 
question. To set aside all doubt as to who is included in the term 
simpliciter professi I would preface my remarks with the following 
quotation : "Pius IX. per Encyclicas Litter as de die 19 Martii, 1857, 
s. Congregationis super statu Re gularium de Votorum simplicium 
professione, incipientes 'Neminem latet' statuit atque decrevit, ut 
in religiosis viroriun familiis in quibus vota solemnia emittuntur, 
peracta probatione et novitiatu ad praescriptum S. Concilii Tridentini, 
Constitutionum ApostoL, etc. Novitii vota simplicia emitterent post- 
quam expleverint aetatem annorum sexdecim, etc. . . . Pro- 
fessi post triennium a die, quo vota simplicia emiserint, computan- 
dum, si digni reperiantur, ad professionem votorum solemnium ad- 
mittantur" (Bizzarri^ Collectanea in usum Secretariae s. Congr. 
Episc. et Regid., p. 854). 

In these Litterae Encycl. there is only mention, therefore, of sint- 
pliciter professi who, in regular orders for men with solemn vows, 
take after their novitiate the simple vows ad triennium. 

The solution of our question appears to depend chiefly upon the 
fact whether these simpliciter professi vere et proprie are to be re- 
garded as religiosi, and whether they are consequently bound to all 
obligations and duties of the same, unless special privileges or dis- 
pensations in the rules of that order permit of mitigation or excep- 
tion. 

This matter is dealt with by Bizzarri {apud Piatum Monten- 

2Z1 



232 THE CASUIST— VOL. U 

sent: Praelectiones Juris Regularis, torn. I, ed. II, p. 9) as fol- 
lows: "In generali conventu diei 15 Junii, 1856, penes s. Congre- 
gationem super Statu Regularium disputatum est, an qui in 
Ordinibus religiosis votorum solemnium praemittere debent profes- 
sionem votonim simplicium declarandi essent vere Rcligiosi vel tan- 
tum participes privilegiorumf Nonnulli ex Emis Patribus primam 
partem propositionis probandam esse existimabant, quia ageabtur 
de votis simplicibus perpetuis ex parte voventis, utpote quae tendunt 
ad emittenda deinde vota solemnia, in quibus perfectionem et com- 
plementum accipient, prout locum habet in Societate Jesu. Alii vero 
autumabant, communicationem tantum privilegiorum esse conceden- 
dam, cum non expediat privilegium singulare Societatis Jesu ad 
alios Ordines extendere, ne novus Status Rcligionis contra vigentem 
Ecclesiae discipUnam gcneraliter constituatur. In hac sententiarium 
disparitate SSmus D. N. Pius IX sequentcm probavit articulum, qui 
in declarationibus a memorata S. Congregatione datis sub n. VI 
Legitur: Professi dictorum votorum simplicium participes erunt 
omnium gratiarum et privilegiorum, quibus professi votorum solem- 
nium in memorato Ordine legitime utuntur, fruuntur et gaudent." 

Upon this article of Pius IX Petrus a Monsano, in his Collectio 
Indulgentiarum, theologice canonice ac historice digesta, p. 580, 
comments correctly : "Nee ipsi alumni, qui in Ordinibus religiosis 
professionem votorum simplicium per triennium praemittere debent, 
declarati sunt vcri religiosi, licet participes facti sint omnium grati- 
arum, quibus professi votorum solemnium gaudent." 

This opinion gains weight, and is confirmed, by the declarations 
of the S. Congr. Super Statu ReguL, and by the views of the authors 
of the law of regulars, from which it is evident that on the one hand 
(A) there are not conceded to the simpliciter professi certain rights 
and faculties of the solcnmiter professi, or that special rules apply 



SIMPLE VOWS AND RESERVED CASES 233 

for the same in regard to certain functions, as for instance in the 
Dispositio in temporalihus, etc.; and that, on the other hand, (B) 
they are exempted from certain duties or penalties of the solemniter 
professi: 

A. (a) Bona defuncti religiosi, qui tantum vota simplicia cniisit, ad 
suos haeredes spectare, sive ah intestato, sive ex testamento venientcs, 
declaravit s. Congregatio Episc. et ReguL, die 6 Jun., 1836. 

(b) The solemniter professi vi temporalis vel perpetui indulti 
saecularisati are usually subjected to various clauses and conditions 
(Piatus M., torn. I, p. 175), whereas dimissi cum votis simplicihus ab 
omni vinculo et obligatione liberi sunt (Bouix I, 516). Quod in 
dubium est, si agatur de iis, qui in Ordinibus vere religiosis pey 
triennium manere debent in votis simplicihus (decl. s. Congr., d. 12 
Jun., 1858). 

(c) Superiores Regulares hujusmodi professis concedere possunt 
litteras dimissoriales, sed ad primam Tonsuram "dumtaxat" et Ordi- 
nes minor es servatis de jure servandis (decl. s. Congr., 12 Jun., 
1858). 

(d) Non possunt simpliciter professi titulo paupertatis ad Ordines 
sacros promoveri (S. Congr., 12 Jan., i860). 

(e) In actu receptionis ad votorum solemnium professionem sim- 
pliciter professi non habent suffragium (decl. s. Congr., die 7 Febr., 
1862). 

(f) Simpliciter professi excluduntur a fercndo suffragio pro 
admissione ad professionem votorum simplicium juxta dcclarationeni 
s. Congr., de die i Sept., 1875. 

(g) Neque licite neque valide simpliciter professi eligi possunt 
tanquam Praelati vel Superiores in eodem Or dine (decl. die 16 Jan., 
1891). 

(h) Ad quaestionem, an voto simplici paupertatis ligati de sm''-^ 



234 



THE CASUIST— VOL. II 



bonis valide disponant absque licentia Superioris, respondet Piatiis 
M.: sententia commwiior afHrmat; peccant quidem graviter contra 
votum ita agendo; nihilominus capaces stmt transfer endi dominium; 
nullibi, ejiim hujusmodi incapacitatem statuit ecclesia. 

(Ita. etiam apud eundem auctorem; Suar., Sanch., Lugo, Schmalz, 
Ferraris.) 

B. (a) Simpliciter professi tenentur choro inter esse, licet non 
teneantur ad privatam divini officii recitationem (del. s. Congr. super 
statu Regul., 6 Aug., 1858). 

(b) Inter conditiones ad apostasiam proprie dictam requiritur ut 
recedens in religione proprie dicta a Sede Apostolica approbata vota 
substantialia emiserit. Unde qui recedit durante triennio votorum 
simplicium, non est verus apostata, quia nondum vota substantialia 
emisit (apud Piatum M., p. 195, Suar., Sanch., Reifif.), Ergo nee 
Excommunicationem aliasque poenas incurrit. 

(c) Inter conditiones ad Excommunicationem latae sententiae 
nemini tamen reservatam ob habitus religiosi dimissionem incurren- 
dam etiam habetur: ut habitus dimissio a religioso professo Hat, quia 
canones citati de religioso loquuntur. Porro in sensu stricto hoc 
nomine veniunt tantum religiosi vere professi (Ita apud Piatum M., 
p. 302, Passerini (O. Pr.) Pellizarius, S.J., Rotario Barn). 

(d) Ad quaestioncm, utrum fratres Laid Excommunicationem 
aliasque poenas incurrant, si muliercs in monasteria virorum intro- 
ducunt: respondet Piatus M., p. 360: aflirmandum est, si vota solem- 
nia jam emiserint, cum sint veri religiosi; ergo non incurrerent has 
poenas cum votis simplicibus. 

If, and because, the simpliciter professi must not be regarded as 
veri religiosi, and for this reason are not partakers of various rights, 
faculties and privileges of the solemniter professi; if further they 
are not bound to all the duties and obligations of the solemniter pro- 



SIMPLE VOWS AND RESERVED CASES 235 

fcssi, not even incurring papal reservations, just because they are 
only simplicitcr, and not solcmnitcr professi, I think I am justified 
in drawing the conchision : Simpliciter professi non incurrunt casus 
in Ordine rescrvatos; agitur enim de lege poenali et odiosa quae est 
stricte interpretanda, adeoque Us soils, qui indubie religiosi sunt, 
applicanda. 

P. Antonius, O. Fr. M. 



LVI. ADMISSION TO HOLY ORDERS 

Placidus, spiritual director and confessor in a clerical seminary, 
became uneasy in mind at ordination time every year, as he does not 
know exactly whether or not he should admit certain doubtful can- 
didates to Holy Orders ; all the more he is embarrassed as there 
prevails in the diocese a great lack of priests. Recent moralists, like 
Berardi, appear to favor leniency; earlier ones, however, demand 
that doubtful candidates be rejected. The question is: What rule 
is to be followed in this regard ? 

Answer. — Doubtful may be considered in general all those can- 
didates who have not discarded serious sinful habits, but have merely 
promised amendment. Of such habits may be mentioned especially 
ebrietas and mollities. 

The longer a candidate remains under the circumspect guidance 
of a spiritual director, the better judgment can the latter form of the 
penitent's temperament: the formation of this judgment is particu- 
larly easy after an alumnus has spent three or four years in the 
seminary. He, who in the first years of his sojourn in the sanctuary 
of the Lord, far from the distracting clamor of the world and close 
to the source of grace, shows no signs of earnest purpose of amend- 
ment, of him can lasting amendment neither be expected after ordi- 
nation; for he who honestly and sincerely makes use of the means 
of grace at his disposal, will assuredly become master of his passions 
before ordination. But he who employs them only indifferently, 
can not without presumption expect miraculous conversion from the 
Holy Sacrifice and the Holy Office, Grace and good will are the 
chief factors in the process of perfection. Where honest good will 
is wanting, there exterior graces avail little and only periodically. 

236 



ADMISSION TO HOLY ORDERS 



237 



An opinion is more difficult if the candidate came to the seminary 
from a life in the world, and within the space of a year must finally 
declare himself for the priesthood. In this case the terms ''rarius, 
bonae frugis, probitas" are for the director the criterion. 

(a) Rarius. Relapse into sin must not only become rarer, but very 
rare indeed, for St. Paul writes to his disciple Timothy, II, 22 : 
"Manus cito nemini imposiieris, neqiie commnnicavcris peccatis ali- 
enis." The Council of Trent, sess. 2t„ cap. 14, charges the bishops : 
"Sciant Episcopi debere ad hos ordines assumi dtgnos dumtaxat et 
quorum probata vita senectus sit," and St. Thomas teaches that for 
the candidates for ordination non suffkit bonitas qualiscunque , sed 
requiritur excellens. For this reason P. Marc (p. 411) draws the 
conclusion :"//mc prohibet apostolus (II Tim. Ill, 6) ordinari neo- 
phytos, id est, ut explicat idem AngcUcus, qui non soliimi aetate nco- 
phyti sunt, sed et qui neophyti sunt in perfectione." 

God, in His wise providence, gives as a rule moral virtue not 
without effort and struggle on the part of the recipient, and thisi 
effort will be all the harder, and the struggle all the more violent, 
the more the opposite vice has taken posession of the sensual nature, 
and the deeper roots it has struck in the heart. 

Like a river that has overflowed its banks, and lays waste the fields 
and meadows, can not be turned back into its bed by an easy turn 
of the hand, neither can the stream of passion, especially when it is 
a question of occasio in esse, securely be dammed merely by a simple 
act of will, and generally even after a sincere return to God some 
relapses are not unlikely, until virtue gradually has been fortified. 
Naturally, inconstancy, neglect in co-operating with grace, and 
inexperience in employing the means of grace, are the causes of 
such relapses. 

(b) Bonae frugis. The candidate must show that he has labored at 



238 THE CASUIST— VOL. II 

the amendment of his Hfe with fruit and profit, and that thus, in his 
new state in Hfe, he gives promise of being useful to himself and 
others. He, who is himself not in the state of grace, who discharges 
the sacred functions therefore sacrilegiously, certainly will never 
contribute to the welfare of the Church, nor be a blessing to the 
souls entrusted to him. The Church does not of course demand that 
her clergy must have been previously perfect, and for admission to 
the cloister, as well as to the seminary, the principle of St, Bernard 
applies : "Nos in monasteriis omnes recipimus spe meliorandi," but 
she demands to see in her prospective ministers visible progress in 
virtuous endeavor, and this all the more pronounced the nearer they 
approach the altar. Hence Benedict XIV, in his Bull Uhi primiim, 
addresses the bishops thus : "Studiosa et magna adhibita diligentia 
investigandnm a nobis est, an eormn, qui priorum Ordinum sus- 
ceperint ministeria, talis fuerit vivendi ratio et in sacris scientiis 
progressio, ut vere digni judicandi sint, quibus dicatur: 'Ascende 
superius' cum alioqiiin expediat in infcriori potius aliquos manere 
gradu, quam cum suo majori periculo et aliorum scandalo ad alti- 
oreni provehi." 

The Council of Trent expresses itself even more plainly (Sess. 23, 
cap. H) on individual ordinations, demanding from those in minor 
orders : "Clcrici ita de gradu in gradiim ascendant, ut in eis cum 
aetate vitac meritum et doctrina major accrescat: quod et bonorum 
morum e.vemplum et assiduum in ecclesia ministerium atque major 
erga presbyteros et superiores ordines revercntia, et crebrior quam 
antea corporis Christi communio maxime comprobabunt" ; of deacons 
and sub-deacons it expects (cap. 13) : "Subdiaconos et Diaconos or- 
dinandos esse, habentes bonum testimonium et in minoribus Ordini- 
bus jam probatos, qui sperant Deo auctore se continere posse," and of 
priests (cap. 14) : "Qui pie et Udeliter in ministeriis anteactis se 



ADMISSION TO HOLY ORDERS 239 

gesserint et ad Presbyteratus ordinem assumuntitr, honum haheant 
testimonium . . . atqtie tta pictate ac castis moribus conspicui 
sint, lit praeclariim bonorum operum exemplar et vitae monita ab eis 
possint exspectari." 

(c) Probitas. Mere outward integrity and freedom from con- 
spicuous exterior faults do not suffice ; a life of probity is demanded, 
probata vita, as the Council of Trent says, alluding to the words of 
St. Paul : "Diaconos similiter pudicos et hi autem probentur primnm 
et sic ministrent nullum crimen habentes." Hence St. Alphonsus 
requires of candidates for the priesthood probitatem habitualem, and 
St. Bernard demands : "In clcro autem viros probatos deligi oportet, 
non probandos." 

Although in regard to renunciation of temporal goods and sub- 
mission of the will lesser claims are made upon secular priests than 
upon regulars, yet in puncto puncti, being in constant intercourse 
with the world, and having fewer means of grace, they are exposed 
to greater danger and in this they must be fortiores. Hence St. 
Alphonsus, and after him Scavini, require of an ordinandus a per- 
fect abstemiousness of three months. Cardinal Goussey says : If a 
candidate has fallen once or twice, more from frailty than from de- 
sign, and is much affected by his fall, then according to our opinion 
six months' probation are enough ; generally, however, a year should 
be required, especially if the fall was of design. Other moralists, as 
Bertin, Bouvier, Leon, a Porto Maur., are still more exacting. 

It should not be inferred from these opinions that the probitas 
ordinandorum is to be determined according to mathematical forms, 
by days and months, for the human heart is not a machine. One who 
has been on probation for a long while may again relapse, and a 
recently converted Paulus may hold his ground. We must never 
forget that even a promising servant of God may fall if he do not 



240 THE CASUIST— VOL. II 

combine continual vigilance with prayer and work, and that for us all 
the words are applicable : qui stat videat ne cadat. For a forceful, 
energetic character there may suffice a considerably shorter proba- 
tion than for an indolent weakling, one who seeks the security and 
shelter of the sanctuary rather than the glory of God and the 
Church's welfare. 

The apparently severe opinions of saintly teachers and theologians 
merely indicate that, in the all-important matter of election to the 
priesthood, probability is not sufficient, and by no means should a 
mercenarius be given admission to the sanctuary just to remedy a 
lack of priests; a doubtful candidate should be rejected rather than 
approved ; for there is no greater harm for the Church of God, no 
greater curse for the people, than unworthy, undutiful priests. Nor 
is there a more certain road to misery, in this and the other life, than 
the priestly state for those without vocation. 

P. Agnellus, O. M. Cap. 



LVII. ADMINISTRATION OF THE HOLY VIATICUM 

TO ONE UNCONSCIOUS FROM A 

PARALYTIC STROKE 

The curate Lucius is called to Caius, who, nearly eighty years of 
age, and never before seriously ill in his life, had now suffered a 
stroke of paralysis. Lucius found him fully conscious, heard his con- 
fession and prepared to leave, not considering the man's condition 
critical. Only at the urgent request of the anxious wife, and at 
the patient's own solicitation, decided Lucius to give Caius Extreme 
Unction. Thereupon the patient asks for the Holy Viaticum, say- 
ing he felt his end approaching. Lucius hastened away to get the 
Viaticum. Meanwhile the daughter prayed with her father short 
acts of preparation for Holy Communion. Just before the priest 
returned with the Holy Viaticum Caius lost consciousness. Thus 
Lucius found him and waited a while for consciousness to return. 
But in vain. He was sorry not to be able to give the Viaticum to 
the unconscious man. He bestowed absolutio in articulo mortis, 
and bore the Holy Sacrament back again to the Church. Caius died 
shortly after, without regaining consciousness, and of course with- 
out the Viaticum. The question is, did Lucius act correctly in not 
giving the Viaticum to the unconscious man ? Does unconsciousness 
of itself preclude the reception of the Holy Viaticum? To both 
questions the answer is briefly : No ! 

Now the argument. The actual reception of Holy Communion is 
necessary in general, necessitate praecepti divini et ecclesiastice. 
The divine Saviour expressly imposed actual reception, not merely 
upon the priests, but also upon the faithful. This is plainly evident 
from the Lord's words at the institution of the Holy Sacrament of 

241 



242 THE CASUIST— VOL. II 

the Altar: "Accipite et comedite . . . Hoc facite in meant 
commemorationem." The Apostle (I Cor, ii, 23-27) confirms this 
beyond any doubt, by concluding the account of the institution of 
the most Holy Eucharist with the words: "Qiiotiescumque cnim 
manducabitis paneni hunc et calicem bibetis; mortem Domini an- 
nunciabitis donee veniat." The Council of Trent (sess. 13, cap. 2) 
confirms the divine command of actual reception as follows : "Salva- 
tor noster, discessurus ex hoc mundo ad Patrem, sacramentiim hoc 
instittiit, in quo divitias divini sui erga homJnes amoris velut eifudit, 
memoriam taciens mirabilium suorum; et in illius sumptione colere 
nos siii memoriam praecepit, suamque annuntiare mortem, donee ipse 
ad jiidicandum mundum veniat." 

St. Thomas Aquinas (3 qu., 80 a., II) refers, in further proof, 
also to the following words of the Lord (John 6, 54) : "Nisi man- 
ducaveritis carnem Filii hominis, et biberitis ejus sangtiinem, non 
habebitis vitam in vobis." 

In the early centuries of Christianity the ardor of the faithful in 
the actual reception of Holy Communion was so great that the 
Church had no need of issuing a command in regard to it. This 
became necessary only when this ardor lessened. Since that time we 
have had many decrees of Popes and councils, by which the obliga- 
tion of receiving Holy Communion is emphasized. For brevity's 
sake we refer only to the fourth Lateran Council, under Pope Inno- 
cent III (can. 21), and to the Council of Trent (sess. 13, can. 9). 

The reception of Holy Communion is directed especially in danger 
of death. This duty follows from the very purpose for which Our 
Lord chiefly commanded the reception of Holy Communion, The 
Council of Trent, in reference to this, says : "Sumi autem voluit 
sacramentum hoc, tamquam spiritualem animarium cibum, quo alan- 
tnr et confortentur viventcs vita illius, qui dixit: Qui manducat me. 



ADMINISTRATION OF THE HOLY VIATICUM 



243 



et ipse znvet propter me: et tamquam antidotum, quo liheremur a 
culpis quotidianis, et a peccatis niortalihus praeservemur. Pignus 
praeterea id esse voluit futurae nostrac gloriae, et perpetuae felici- 
tatis, adeoqite symhohim unius illius corporis, ciijus ipse caput ex- 
istit, cuique nos tamquam membra arctissima fidei, spei ct charitatis 
connexione adstrictos esse voluit." 

When, however, are we more in need of this spiritual food for the 
soul, this antidote against the poison of sin, this pledge of future 
glory and eternal bliss, as also of the most intimate union with 
Christ, our Head, as the living members of His mysterious Body, as 
when in danger of death, in that important moment upon which the 
whole of our eternity depends and when Satan once again employs 
all his cunning and power to plunge the soul into eternal ruin. 

Hence St. Jerome (in Evang. St. Matt., c. 15) says with refer- 
ence to the dangerously sick: "Non vult eos Jesus dimittere jejunos, 
ne deiiciant in via. Periclitatur ergo, qui sine coclesti Pane ad opta- 
tam mansioncm pervenirc festinat. Unde et Angelus loquitur ad 
Eliam: Surge et manduca, quia grandem viam ambulaturus cs." 

Similarly the Council of Trent expresses itself (1. c. cap. 8) : 
"Panis ille supersubstantialis vere Udelibus christianis sit animae 
vita et perpetua sanitos mentis, cujus vigore confortati ex hujus 
miserae peregrinationis itinerc ad coelestcm patriam pervenire valc- 
ant, eiindem Pancm Angclorum quern modo sub sacris velaminibus 
cdunt, absque ullo velamine manducaturi" (Compare Cat. Rom., p. 
2, c. 4, nn. 54, 70). 

The ecclesiastical precept of the reception of the Holy Maticum 
is expressed unmistakably also in the constant practise of Holy 
Church. It has always been her chief concern that none should 
depart this life without the Holy Viaticum. Innumerable instances 
from the Church's history bear witness to this constant concern of 



244 ^^^ CASUIST-VOL. II 

the Church. St. Dyonisius of Alexandria gives an account (Euseb. 
Hist. Eccl., 1,4, c. 44) of an aged man, named Serapion, who per- 
ished in the persecution. Before his death he sent for the priest so 
as to receive the Holy Viaticum. The priest himself was seriously sick 
and could not possibly journey the long distance. In order, however, 
not to let the sick man die without the Holy Viaticum, he entrusted 
it to the messenger. "Exiguam Eucharistiae partem puero tradidit, 
juhens, ut aqua intinctam seni in os instillarct . . . Puer buc- 
cellam intinxit et in os senis infudit. Qui ea paulatim absorpta con- 
tinuo animam exhalavit." 

St. Ambrose shortly before his death received the Holy Viaticum, 
as we are informed by Paulinus, his secretary. Furthermore many 
Popes and councils expressly ordained the administration of Holy 
Viaticum to those in grave illness. Thus the Popes SiRicius, Inno- 
cent I, SiXTus III, Leo the Great, Gelasius I, Felix HI, Gre- 
gory THE Great, Gregory HI. Of the councils we mention those of 
Nice, the fourth of Carthage, the third of Orleans, the seventh, 
eleventh and sixteenth of Toledo, the second of Aix La Chapelle. 
The Council of Trent directs : "Deferri ipsam sacram Eucharistiam 
ad inilrmos, et in hunc usum diligenter in ecclesiis conservari, prae- 
tcrquani quod cum summa aequitate et ratione conjunctum est, turn 
multi: in conciliis praeceptum invenitur et vetustissimo catholicae 
Ecclesia more est observatum. Quare sancta haec synodus retinen- 
dum omnino salutarcm hunc et necessarium morem statiiit" (Com- 
pare Cat. Rom., p. 2). 

St. Alphonsus Liguori teaches positively (Theol. Mor., 1. 6, 
n. 290 q.) : "Sumptio Eucharistiae Melibus adultis est necessaria 
necessitate non medii sed praecepti divini obligantis . . . in 
articulo mortis per moduni viatici . . . Quisque Udelis in 



ADMINISTRATION OF THE HOLY VIATICUM 



245 



periculo vitac, quod praevidet vel mcrito timet v. gr. in gravi morbo 
tenetur sub mortali communicarc." 

This holy father does not leave us in doubt either as to what must 
be understood by articulus mortis. He explains (H. Ap., tr. 15, nn. 
19, 46) : "Quoad viaticum dicimiis hie, quod quilibet Hdclis tenetur 
illo muniri semper ac iniirmus in probabili mortis periculo est con- 
stitutus, prout est qui graviter dccumbit cum mortalibus signis 
. Potest suscipi Eucharistia a non jejuno, cum communio 
datur per viaticum in periculo mortis. Dictum est in periculo, quia 
ad recipiendum viaticum non est necesse nee laudabile exspectare 
tempus, quando nulla amplius spes vitae subest, sed sufficit lit adsit 
periculum probabile mortis." 

If then the reception of the Holy Viaticum is ordered and of 
obligation in danger of death, then naturally priests are also bound, 
under such circumstances, to administer Holy Viaticum. 

But is there no exception from this rule? And is simple uncon- 
sciousness among the exceptions? Only those sick persons are ex- 
cepted who can not receive the Holy Viaticum with becoming rever- 
ence. The Rituale Romanum warns: "Diligenter curandum est, ne 
its tribuatur viaticum, a quibus ob phrenesim, sive ob assiduam tussim 
aliumque similem morbum aliqua indecentia cum injuria tanti Sacra- 
menti timeri potest." 

St. Thomas Aquinas gives to unconsciousness special mention. 
He makes a distinction between the so-called feeble minded and 
those deprived of all use of reason. He teaches that the Holy 
Eucharist is not to be refused to the feeble minded. Of the others 
he distinguishes such who never had the use of reason, and such to 
whom the use of reason was not always lacking. If the latter, while 
in command of their reason, showed devotion to the IMost Blessed 
Sacrament, then it must be administered to them in danger of death. 



246 THE CASUIST— VOL. II 

if no irreverence is to be feared. "Aliqui dicuntnr non habere usum 
dupliciter: uno modo quia habent dcbilem usum rationis, sicut dicitur 
non videns qui male vidct; et quia tales possunt aliquam devotionem 
hujus sacramenti concipere, non est eis hoc sacramentum denegan- 
dum. Alio modo dicuntur aliqui non habere totaliter usum rationis. 
Aut igitur nunquam habuerunt usum rationis, sed sic a nativitate 
permanserunt ; et sic talibus non est hoc sacramentum exhibendum, 
quia in eis nulla modo praecessit hujus sacramenti devotio: aut non 
semper caruerunt iisu rationis; et tunc, si prius, quando erant com- 
potes suae mentis, apparuit in eis devotio hujus sacramenti, debet 
eis in articulo mortis hoc sacramentum exhiberi, nisi forte timeatur 
periculum vomitus vel exspuitionis." Unde in Concilia Carthaginiensi 
IV {can. 76) legitur: Is qui in iniirmitate poenitentiam petit, si casu 
dum ad eum sacerdos invitatus venit, oppressus iniirmitate obmu- 
tuerit, vel in phrenesini conversus fuerit, dent testimonium qui eum 
aiidierunt et accipiat poenitentiam; et si continuo creditur moriturus, 
reconcilietur per manus impositionem et infundatur ori ejus Eucha- 
ristia." 

St. Alphonsus in this entirely agrees with St. Thomas. 

Our case must be judged on these principles. Caius, shortly before 
the priest's return with the blessed Sacrament, possessed the use of 
reason, and plainly showed his devotion to this Sacrament by 
urgently asking for the Holy Viaticum. In his case there was no 
danger of vomiting, etc., and no profanation of the Most Holy was 
to be feared, therefore. If Lucius did fear any such thing he should 
have simply made a trial with an unconsecrated Host, so as to re- 
move all doubt in this respect. Unconsciousness of itself was cer- 
tainly no reason for Lucius to leave the sick man without having 
satisfied his desire. A doubt as to the proper disposition for the 
reception of the Holy Viaticum could not at all exist- in this case. 



ADMINISTRATION OF THE HOLY VIATICUM 



H7 



The genuinely Christian hfe led by Caius, a devout Cathohc, was an 
additional guarantee in this respect. It is all the more to be re- 
gretted that Caius' ardent desire for the Holy Viaticum was not 
satisfied. Lucius should certainly hereafter proceed according to the 
views of our loving Mother, the Church, who is so solicitous for her 
dying children. The dying will thank him for it in eternity. 

P. Jos. A Leon, O. M. Cap. 



LVIIl. CONDITIONAL BAPTISMS 

In a recent publication a priest gives his opinion upon the repe- 
tition sub conditionc, of Baptisms administered, in cases of necessity, 
by lay persons, midwives particularly, and what the procedure should 
be in such cases. The theoretical principles are, briefly : the priest 
must inquire how the lay Baptism was administered when he will 
find one of three cases to be the fact : 

(a) The Baptism was without doubt administered validly, and 
then he must not repeat it, but merely supply the ceremonies ac- 
cording to the ritual : or 

(b) The Baptism was beyond doubt invalidly given, and then he 
certainly must baptize the child ; or he finds 

(c) Neither validity nor invalidity of the Baptism is certain, one 
is as doubtful as the other, and then he must re-baptize the child 
suh-conditionc: Si non cs baptisatus. 

But what about the practise? For this the priest quoted gives 
two rules : 

1. In any case it is not allowed to re-baptize, even sub-conditione, 
until after inquiry has been made about the validity of the Baptism 
given. 

2. It is not necessary to make a thorough inquiry, if the midwife, 
phvsician, or other person, is known to the priest, and if from previ- 
ous questioning he is sure of her or his correct administration of 
Baptism, a brief question will suffice then in order to shape his mode 
of action accordingly. 

Will this mode of procedure always and everywhere be correct ? 
Above all, the inquiry sub i required will be superfluous in every 
case where the person is not a Catholic. In reference to this Lehm- 

248 



CONDITIONAL BAPTISMS 



S49 



KUHL writes (Theol. Mor., II, p. 17) : "Pro 'America igitur plane 
puto, numquam haberi sufficient em certitudinem haptismi rite collati, 
nisi forte in singulari casii habeas testes catholic os fide omnino 
dignos. . . . I mo ita in dies magis crescit sive infidelitas, sive 
etiam iipud bonae fidei acatholicos incuria, ut nunc idem did debeat 
vix non nhiqne." 

Inquiries will be superfluous, furthermore, in the case of "madams" 
or other persons who are reliable neither religiously, morally nor per- 
sonally, and their claim to have administered Baptism correctly need 
not be heeded. Such persons are likely to knowingly deny mistakes, 
in order not to be embarrassed before priests and sponsors. But 
even in the case of other persons not very well instructed, one can 
not depend upon even the most careful inquiries with the certainty 
required for the first and most necessary of the Sacraments. In 
almost every instance they will claim to be quite sure of having 
administered Baptism correctly, as it will appear to them impossible 
to make a mistake in such a simple thing as Baptism. All those 
trifles, however, that are sufficient to render Baptism uncertain, and 
to make necessary its repetition, that need the vigilance even of the 
trained priest, those are often fatal to lay-Baptisms. They escape the 
notice of lay persons and even by minute examination can not always 
be ascertained. It is somewhat of a task to ascertain from the aver- 
age midwife (or physician, etc.) if she or he used natural water? If 
she made correct use of the correct formula ? What of the intention, 
of corruptions of the baptismal formula, of leaving out words ? Er- 
rors will easily occur in the hurried, or careless, administration of 
lay-Baptism, without attracting attention of the lay person admin- 
istering the Sacrament, and without possibility of detection after- 
ward. These "trifles" suffice, according to theologians, to allow Bap- 
tism to be repeated conditionally. Who, then, will find fault with 



250 THE CASUIST— VOL. II 

the priest who, in the case of the average midwife, or other lay- 
person, only insufficiently instructed, omits all examination because 
he can not depend upon the answers, and without further ceremony 
re-baptizes conditionally to make sure that each infant shall validly 
receive Baptism ? An exception is to be made, and Baptism need not 
be repeated, if correct lay-Baptism is attested by an eye and ear 
witness, whose knowledge and conscientiousness are a safe guaran- 
tee for his statement. But where is such testis omni exceptione 
major likely? 

If the midwife, physician, or other lay person, is God-fearing, 
conscientious, and well instructed about the details of the adminis- 
tration of Baptism, about intention, matter and form, and applica- 
tion, if it be known, furthermore, that even under the most difficult 
circumstances this person gives lay-Baptism correctly, with com- 
posure and presence of mind, then the priest, as is said siih 2 above, 
need not again and again put the same questions to this person, in 
every case of lay-Baptism administered by her, or him, only to 
receive the same answers. But even with such persons the diligens 
examen required by theologians has a purpose, saltern, proiit ad- 
juncta ferant (Lehmkuhl, Theol. Mor., II, p. 16). 

One should particularly inquire whether it was a special case, 
whether there were extraordinary circumstances. If the priest then 
finds no special reason for conditional re-Baptism, he will omit it. 
But even with such well instructed, reliable persons, this should not 
become the rule. The omission of re-baptizing must rather be the 
rare exception. This is plainly prescribed by the Congreg. de 
Propag. F., dato September 8, 1869 (Lehmkuhl), that, namely, 
children baptized by lay catechists are not re-baptized quibiisdam 
"casihus exceptis," ubi -fieri potest, ut nullum prorsus prohahile du- 
bium circa validitatem baptismi oriatur, although these lay catechists 



CONDITIONAL BAPTISMS 251 

are examined at least once a year as to their reliability. In this mat- 
ter applies the principle that "the Baptism should rather be repeated 
than not spent at all" (Goepfert). 

Judged upon these principles those diocesan precepts that impose 
the obligation of invariable re-Baptism of children baptized by lay 
persons are fully justified. Circumstances, such as lack of instruc- 
tion, indififerentism, etc., may prevail so generally, that notwithstand- 
ing the most searching inquiries there will in individual cases be 
reason for doubt, and hence for a repetition of Baptism. Such dio- 
cesan practise does not contradict dogma. It will always except in- 
dividual cases in which the validity of lay-Baptism is proved beyond 
doubt. If, for instance, a priest has, in case of danger, provisionally 
baptized a newly born infant without the prescribed ceremonies, it 
would never occur to anyone, nor be required by any diocesan de- 
cree, that there must also be a conditional re-Baptism. The "priest 
baptizing," so Scherer says in his Manual of Canon Law, "is not 
obliged, according to present practise, to engage in any lengthy ex- 
amination about the validity of a lay-Baptism, he may rather 
presume its invalidity. The assertion that such indiscriminate 
re-baptizing of lay-baptized children contracts irregularity is not 
supported by the law." 

Fr. Neuhold. 



LIX. CONSECRATION OUTSIDE OF HOLY MASS 

A priest is required to take the Viaticum to a dying person. For 
want of a consecrated Host, he takes an unconsecrated one, pro- 
nounces over it the words of consecration, with the intention of 
consecrating the Host, and gives it to the dying person. Is such 
consecration, in case of necessity, outside of Holy Mass, valid ? 

Yes, it is valid. To this question St. Alphonsus replies as fol- 
lows: Negat Lugo, quia, uf ait, ratio sacramenti nequit dividi a 
ratione sacriUcii . . . ; alii vero communiter affirmant, quia 
in omni sacramento, semper ac minister formam profert super ma- 
teria cum debita intentione, perficit sacramentum. Haec sententia 
est quidem valde probabilis, sed opposita non videtur improbabilis 
(Th. Mor., L. VI., n. 196, Dub. 3). 

Such procedure, however, is always grievously sinful. Lehm- 
KUHL, in his Theol. Mor., II, n. 131, teaches: Graviter peccat qui 
consecrat extra Missae celebrationem; and Dr. Miiller, in his Moral 
Theology, states (L. Ill, par. 92, n. 3) : Nee in necessitate quan- 
tumvis gravi, e. g., uf moribundo praebeatur viaticum, licitum est 
alteram tantum materiam consecrare. 

Adolph. Sghmuckenschlager. 



252 



LX. AN UNBAPTIZED MARRIAGE CANDIDATE IN 
THE CONFESSIONAL 

Livia, the religiously brought up daughter of a wealthy manufac- 
turer, is about to marry Titus, who for several years has been 
bookkeeper in her father's office. The wedding is to be celebrated 
in the spirit of the Church ; Livia and Titus are to receive Holy 
Communion at the Nuptial Mass. Two hours before the ceremony 
they both come to confession. Titus, who for some time has regu- 
larly received the Sacraments at Easter time, begs the priest, in his 
confession, for advice and assistance, confessing that he is an 
adventurer, having secured his position with the aid of forged papers, 
and that he is a Hebrew. In deference to the views prevailing in 
the home of his employer, and particularly out of consideration for 
the daughter of the house, he has pretended piety, even going to the 
Sacraments ; he avows he had not unwillingly entered the confes- 
sional, as he had been comforted there and had recognized in the 
priest, bound in secrecy through the seal of confession, a sympathiz- 
ing friend and a consoler for his greatly perturbed soul. He had 
even felt that, through his humble admission of errors, not only had 
his soul been comforted, but relieved from guilt through the absolv- 
ing words of the minister of God. Now he had resolved to make this 
awful revelation, safe from all betrayal, hoping for assistance, ad- 
vice, mercy! He, however, states his unalterable will: i. That he 
will not desist under any circumstances from marrying Livia ; 2. 
That although he is certainly not an irreligious man, he can have no 
faith in a personal God, in Christ, in dogmas. And now the priest 
shall say what is to be done. 

253 



254 



THE CASUIST— VOL. II 



I. May the priest impart this information to the bride or to her 
father? To this question we must reply a positive No! 

Evidently no seal of confession exists here ; Titus has never sought 
sacramental absolution. Yet perhaps a natural obligation to secrecy, 
a sort of official seal of secrecy, binds the priest. A revelation would 
also result in the most scandalous stories about revelations from the 
confessional, thereby bringing the Sacrament of Penance into ill re- 
pute, all the worse as Titus would not escape punishment by the law. 
Compared with this the great misfortune of the deceived bride and 
her family can not be taken into account. Every man has the natural 
right in the state of distress to seek counsel and consolation, and 
the Church imposes upon the one entrusted with this confidence the 
strictest silence. 

To be sure in such a case the strict obligation of secrecy can not 
be viewed as absolutely certain. Per se, ex natura secreti, it follows 
not. Propter scandahim evitandum, therefore per accidens it might 
follow. S. Alph., Theol. Mor., Lib. 4, Tract 6, n. 971 : Potest mani- 
festari secretum commissum, saltern sine peccato gravi: . . . 
ex justa causa, nempe si servare secretum vergcret in damnum 
commune vel alterius innoccntis, vel etiam ipsius committentis; quia 
tunc ordo charitatis postiilat, ut revelctur; unde etiamsi jurasses), 
tunc detegerc posses. Ita communiter, etc. If it can be hoped that a 
scandal arising from publishing the secret, namely the opinion that 
the seal of confession had been violated, may be removed by ex- 
planation, and that the people would accept such explanation, then 
the confessor would have to act as due consideration for averting the 
damnum injustum from Livia would suggest. If the confessor can 
not entertain this hope then he will per accidens, propter scandalum 
horrendum, propter boniim commune, namely the conservation of 



AN UNBAPTIZED MARRIAGE CANDIDATE 



255 



confidence to the Holy Sacrament of Penance, be obliged to 
secrecy. 

Of course the obligation of secrecy for the priest would be much 
plainer, if Titus had revealed his secret, in the form of a confession, 
only after long years of wedded life with Livia, after they had been 
blessed with children, then the revelation in a certain sense would 
no longer serve as avertendum damnum, but place Livia in a posi- 
tion which would actually mean a damnum emergens and deliver 
her, besides, to most serious qualms of conscience. 

May the priest arrange for a sanatio matrimonii in radicef Even 
if this is possible from a dogmatic standpoint, the priest must not 
apply for it without Livia's knowledge ; for Livia's consent is by no 
means to be presupposed. If Titus should be found out and be 
brought to court, Livia would perhaps find consolation in the fact 
of not actually being the wife of the adventurer and in having ex- 
clusive right to the children ; it might eventually be her only com- 
pensation if some honorable man would then take this unfortunate 
woman for his wife. 

Rudolf Hittmair, D.D. 



LXI. AN CONSECRATUM SIT CIBORIUM EX OBLIVIONE 
EXTRA CORPORALE RELICTUM 

This question has been discussed before * without arriving at a 
positive answer. It is important enough to deserve closer attention. 

We will distinguish two cases. The consecrator actu sees, or has 
in mind, the Ciborium or the small Hosts, which, owing to oversight, 
are placed outside the corporal, or he does not think of them actu, 
but had thought of them previously. 

I. In the first case, when he actu thinks of them, the Hosts are 
really consecrated, his intention covers them as well as the large 
Host. Nor can the objection be valid that a consecration joined to a 
grievous sin can not be presupposed of a priest. For i . In casu the 
intentio consecrandi and the consecration of the matter outside of the 
corporal has actually taken place, and thus there can be no question 
of being only supposed praesumptio enim cedit facto; 2. The conse- 
crator commits no sin at all, if he consecrates a matter ex ohlivione 
extra c or p or ale relic tarn, and consequently the objection is without 
foundation. 

It should not be argued the priest has, or should have at least, the 
intention to commit no grievous material sin. Such an intention is 
inconceivable, for a material sin does not depend upon the intention, 
but solely upon the action. The intention can not prevent material 
sin. He who through an oversight takes another's property, domino 
invito, has committed a peccatiim materiale furti although he may 
have had the intention not to commit any peccatum materiale. No 
one, therefore, has such intention, because it would be quite useless 
and without avail. Therefore in casu valide there has been consecra- 
tion; Lehmkuhl (Theol. Mor., II, n. 125, i) : Certissime conse- 



See The Casuist, vol. I, p. 279. 

256 



AN CONSECRATUM SIT CIBORIUM 257 

cratae sunt. Consecration has taken place even in case the conse- 
crator had intended never to consecrate a ciborium outside the 
corporal. For this intention can not prevent that in casu valid con- 
secration ensues, because hie et nunc the intention does not exercise 
its influence. Should the consecrator observe that the ciborium is 
outside the corporal then his intention may have effect, otherwise 
not at all. Similarly one commits a sin who has resolved to commit 
the sin, no matter how firmly he may have had the general intention 
to commit no sin. That intention simply no longer exercises any 
influence. It has remained mere habitualis, indeed it is implicite 
discontinued. 

Even if shortly before he renewed the intention so to consecrate, 
as he has intended, i. e., super corporale and then pronounce over the 
ciborium extra corporale the words with the intentio consecrandi, 
without thinking of a condition, then it is really consecrated, because 
that intention, although renewed, yet had no effect. If it had been 
in effect, the priest would first have ascertained that the ciborium was 
super corporale, or would have made his intentio with a condition. 
The intentio coniiciendi sacramentum remained completely unaf- 
fected, and therefore also the eifectus, the confectio sacramenti. It 
is exactly the same case as if someone, without noticing it, has two 
Hosts in his hands, and has the intentio to consecrate what he has 
in his hands, although he has also the intentio never to consecrate 
two large Hosts. All authorities agree that both are consecrated, and 
this is stated also in the rnhricac miss (de defect. VH, 1-2) '."Sacer- 
dos hahens undecim hostias, si piifans qiiidem esse decent (hostias), 
tamen omnes voluit consccrarc, quas coram se habebat, tunc omnes 
erunt consecratae." "Si sacerdos putans se tenere unam hostiam, 
post consecrationem invenerit fuisse dims simul iunctas, in sump- 
tione sumat simul utramque." 



258 THE CASUIST— VOL. II 

The intentio just to consecrate one Host has no effect, as the 
intentio consecrandi extends in reality over everything that is in his 
hands, over two Hosts therefore. 

Of course both Hosts would not be consecrated if the two inten- 
tions had entered into a relation one with the other, if the consecrator 
for instance had formed the intentio; I will, if there are two Hosts, 
only consecrate the upper one. But then the intentio would not have 
extended to everything that was in his hands. If, however, the 
intentio consecrandi extends to everything that is in the hand, the 
intention non consecrandi two Hosts, even though renewed, is 
without effect. It runs, so to say, alongside, but does not modify 
the other intention, indeed it is implicite canceled. And so it is in 
our case. If the consecrant united the two intentions, if for instance 
he had said : I will consecrate the ciborium if it is not extra cor- 
porale, then the ciborium extra corporale would not be consecrated ; 
the intentio then would have had no reference to the ciborium at all. 
In our case, however, he does not unite the two intentions. He 
thinks of the ciborium, has the intentio of consecrating it, without 
having in mind his previously renewed intention not to consecrate a 
Host extra corporale, therefore not modifying his intentio corre- 
spondingly. Had he had that intention in mind he would have placed 
the ciborium upon the corporal, or would have duly amended his 
intentio consecrandi. Thus that other intention is for the consecratio 
of no more influence than if it had not been made. There is often 
a mistake made in viewing the matter by assuming that a conditioned 
intention is present, that eo ipso the condition and the conditioned 
intention are somehow present in the will. It is concluded : sunt in 
eadem facilitate, ergo etiam in eodem actu. An intention is not con- 
ditioned unless the condition is made. Now this is not the fact just 
because one at some time resolved of doing something only con- 



AN CONSECRATUM SIT CIBORIUM 



259 



ditional. Hence so often post factum the self reproach : "I wanted 
to do this in that way, or, under this or that condition." 

We think we have proved, therefore, that the intentio was uncon- 
ditioned and positive, as this alone could produce a doubt of the 
valida consecratio. 

2. If the consecrator does not think actu of the ciborium, but had 
it brought upon the altar for his Mass, or had seen how it was 
brought upon the altar, and then intended the consecration, then 
again it is valide consecrated, though the ciborium by oversight re- 
mained outside the corporal. Of course the ciborium would have 
to stand beside the corporal and not somewhere in cornu altaris, 
because otherwise the hoc would not be true. (In our case there is 
question merely of the intentio, and it is presumed that all con- 
ditions in regard to form, etc., were fulfilled.) 

And the reason for this assertion is that the intentio for the small 
Hosts was virtualis; for the priest approaches the altar in casu, cum 
intentione consecrandi iitrumque, magnam scl. hostiam et parvas. 
Et quia ex hac intentione aggreditur opus, habet intentionem vir- 
tualem. The intentio virtualis is defined by St. Thomas as follows : 
Nan oportet quod in opere semper intentio conjungatur in actu, sed 
sufHcit, quod opus ab intentione procedat (In. IV, D. 6, q. i, a. 2, 
ad 4). 

In our case there is the same intentio which St. Thomas describes 
in an example: "Cum sacerdos accedit ad baptizandum, intendit 
facere circa baptizandum, quod facit ccclesia, si postea in ipso ex- 
ercitio actus cogitatio cius ad alia rapiatur, ex virtute primae inten- 
tionis periicitur sacramentum" (3, q. 64, a. 8, ad. 3).* 



* Without sufficient reason, it appears to us, and opposed to earlier authors, 
(cf. St. Alphonsus) Lehmkuhl maintains: "Si intra missam sacerdos nulla- 
tenus cogitavit de particulis eaeque extra corporale rehctae sunt, consecratic 



26o THE CASUIST— VOL. II 

And then if later the intentio becomes actualis for the large Host 
that changes nothing in the intentio for the small Hosts, as it is not 
affected. If the Hosts were upon the corporal, all agree that, by 
virtue of the first intentio, the small Hosts are consecrated (St. 
Alphonsus, Lib. VI, n. 217; Lacroix, Lib. y. p. i, n. ; Laymann, 
Lib. V, tract 4, c. 2, n. 14). The latter does not even mention this 
circumstance, stating : Sin vero Sacerdos, antequam ad sacriUcandum 
egrediatur de consecrandis hostiis in altari positis . . . ad- 
moneatur easdemque consecrare proponat, postea vero omnino ob- 
liviscatur, censeri dehent nihilominus consecratae, cum in tali casu 
neque hosfiarum praesentia neque Sacerdotis intentio virtualis desi- 
deretur, sicut docent (names of writers) et coUigitur ex Ruhr, miss 
(de defect. VII, 4) : Si intentio non sit actualis in consecratione 
propter evagationem mentis, sed virtualis, cum accedens ad altare 
intendat facere, quod facit ecclesia, coniicitur sacramentum. 

Laymann, therefore, as well as the Rubrics, speaks quite posi- 



practice dubia est, quia non certo constat de voluntate consecrandi . . . 
Nam monitio antea e. g. a ministro facta, id quidem effecit, ut sacerdos haberet 
intentionem particulas postea ad consecrationem assumendi, sed certum non 
est, eum illas revera assumpsisse seu intentionem revera exsecutum esse; 
siquidem voluntas ilia ante sacrum concepta non certo dici potest materiae 
consecrandae determinatio tempore consecrationis perdurans, sed proba- 
biiiter erat tantum propositum postea illas particulas assumendi et in con- 
secratione includendi; quod num factum sit, dubium manet." For what 
reason, then, should the voluntas ante Sacrum not be perdurans? If one at 
the beginning of a task makes an act of the will, it prevails if not retracted 
perdurans the same, as if made during the task. And where the intentio 
virtualis is described, it is almost always thought of as ante opus, i. e., not 
merely ante confectionem sacramenti, but also before all liturgical acts con- 
nected therewith. And, finally, is the propositum postea illas particulas in 
consecratione includendi not already the virtualis intentio? Or is there a 
difference between propositum illas consecrandi and p. illas in consecratione 
includendi? It need not further be expressed, and there remains in conse- 
quence no reason for a doubt. 



AN CONSECRATUM SIT CIBORIUM 261 

tively without entering upon the circumstance whether the Hosts 
be upon the corporal. 

It remains then only to prove that that circumstance does not 
change the effect. The reason for denying this is, quia, cum intentio 
consecrandi extra corporale fuisset peccatum grave, illam tu habuisse 
non praesumeris (St. Alphonsus). We have already demon- 
strated the invalidity of this objection. There can be no question of 
a praesumptio, because a positive virtualis intentio, not retracted, was 
certainly present, and, furthermore, because it is no sin to consecrate 
Hosts ex ohUvione extra corporale relictas. 

We maintain after all this, that the view (that the Hosts are con- 
secrated) is the correct one. We believe we have proved sufficiently, 
(sub. i), that intentions running alongside are of no value because 
they do not at all affect the intentio just then present, they remain 
without effect upon it. Everything argued sub. i applies also in 2, 
because both cases differ only in so far as in the first case an intentio 
actualis, in the second only virtualis, was present. And thus would 
be proved that also for this case the intention to consecrate was un- 
conditional and positive. 

From the remarks sub. i, about intentions never to consecrate 
Hosts extra corporale, it follows necessarily that all intentions made 
in general, or concurrently in particular, are of no influence upon 
the intentio petiiciendi sacrarnentum. The sole advantage they have 
is that which every good resolution brings with it, namely to make 
a man more careful about certain things. In order to have an in- 
fluence upon the intentio consecrandi, they must every time be 
brought into connection with the same. If then in a perfectio sacra- 
menti the intentio is merely virtualis, this condition must have been 
added to the intentio beforehand, and if it is actualis, it must now be 
added. If this is not done the intentio is not conditioned, no matter 



262 THE CASUIST— VOL. II 

how many purposes, which might or should act as conditions, may 
exist in the will actualiter or habitualiter. The might and the should 
do not count. 

For this reason it seems the advice, to resolve under what circum- 
stances one will or will not consecrate, is of no value if the resolution 
is to prove later the validity of a consecration. It is, however, to be 
recommended to make his intentio always as the Rubrics recom- 
mend : Quilibet Sacerdos talem semper intentionem habere deberet, 
scilicet consecrandi eas omnes quas ante se ad consecrandum positas 
habet* One, therefore, should omit conditions (for instance si est 
super c or p or ale) as they may subsequently cause embarrassment. 

Fr. Bremer. 



* This intentio, as there found, is positive and unconditional, and for this 
reason applies also to the small Hosts which by oversight were left extra 
corporate. This is not the case of the other expression in the Rubrics: .si alique 
Hostiae ex oblivione remaneant in altari . . . non consecrat. For (i) in 
altari may be everywhere upon the altar, i. e., in cornu altaris, and then the 
form hoc would no longer be true; (2) they may be Hosts of which the 
priest knows nothing at all, and knows not whether he may consecrate them; 
(3) it seems as if the words there cum non intendat consecrare nisi qua^ 
videt belonged also to this sentence. That would mean that these Hosts were 
not consecrated, if the priest makes the intentio to consecrate only what he 
actually sees, and then in forgetfulness does not look at them. 



LXII. THE CLERGYMAN'S DEMEANOR 

If any one is expected to be all things to all men it certainly is the 
priest. The priest is there for the people's sake, and he must be able 
to mingle and to talk with them. He must know also how to mix 
with those of refined forms, in order to gain an influence in their 
circles for the interests of religion. This ability must be aimed at in 
the priest's training. The Council of Trent (sess. 22) has impressed 
upon priests the sacred duty that in their garb and demeanor, their 
manner and conversation, as in their whole bearing and actions, 
they should be dignified. And even Holy Writ, that sober book of 
wisdom, has not disdained, in ancient times already, to give rules of 
demeanor, as for instance in the following passages : Prov. xvii, 24 ; 
xviii, 13; Ecli. xix, 26, 27; xx, 7, 8; xxi, 23, 26, 27, 29; xxxi, 12; 
xxxii, 10-13, etc. 

No doubt remains therefore that upon polished demeanor and 
pleasing ways great stress is to be laid by the priest. If he lacks 
these he can not be surprised if he meets with lack of regard, or is 
even avoided. No man's ways are more closely watched than the 
priest's (Compare I Cor. iv, 9). It must be obvious, also, that it is 
polish of deportment which opens to the priest the door of cultured 
society, where he can gain not only personal regard for himself, but 
also esteem for the priesthood in general. Of course the priest's 
polished forms must never degenerate into affectation, and never 
must the priest in his worldly deportment in the least degree forget 
or compromise his priestly dignity. He should bear himself, frankly 
and unostentatiously, as a college bred man, in speech and manner, 
and should demonstrate that he is not only well versed in the sciences 
but that he also has the tact and well bred forms required in polite 
society and in the intercourse with persons of rank. 

263 



264 THE CASUIST— VOL. II 

Virtue and piety are of themselves precious pearls, and if set in 
amiableness and pleasant demeanor their value will be enhanced and 
will invite imitation. There are many people who by our unaffected- 
ness, coupled with reserve and ennobled by modesty, may be divorced 
from their prejudices against virtue and incited with a desire for 
that which formerly was to them unattractive and somber. Only 
in this way will the priest succeed in making himself beloved, as of 
God so also of man, such as the Holy Spirit in Ecclesiasticus Ixv, i, 
says in praise of the leader of the people: Dilectus Deo et homini- 
hus. With this ideal attained, and if the clergyman has by well bred 
ways gained esteem and respect in social circles, it will be much 
easier to gain friendly footing with families of refinement and thus 
exercise a good influence also in those circles. 

This matter receives usually small notice, but wrongly so. If we 
glance at the model given us in the life and doctrine of Christ, the 
right appreciation for this consequential matter can not be lacking. 
In this connection the following passages in the New Testament 
should also be compared: Phil, iv, 5, 8; Rom. xii, 10, 13, 15, 18; 
xiii, 7; Luke xiv, 8-1 1 ; xxii, 26; Matth. v, 39-42; x, 16; xi, 29; xx, 
27, 28. 

The priest's life must be fashioned in every respect after Christ, 
the High Priest, who in all His poverty did not forego nobility of 
birth, and in all His humility took with dignity His part as true man 
among men ; surely our divine Teacher did not see in these qualities 
any danger of lessening the fruits of His activity, or of suffering in 
genuine popularity. 

Let us draw briefly the conclusion: We must earnestly endeavor 
to imitate the example of the incarnate God, and in very truth "be- 
come all things to all men" (I Cor. ix, 22). 

Jos. M. 



LXIII. HOW CAN MEN BE INDUCED TO FREQUENT 
COMMUNION ? 

"I can not get men to receive frequently the Holy Sacraments," 
many a priest complains, and therewith he lets them go their own 
way and turns his attention to the women, who can, with less trouble, 
be held to heed the priest's advice. It is no doubt a remarkable fact 
that even men who in public life valiantly and energetically fight for 
the Church, are — exceptis excipiendis — very often satisfied with the 
at least once a year, as regards Holy Communion. This is not a 
wholesome state of affairs ; the exterior life must draw strength from 
the interior, otherwise it \\\\\ degenerate. A devout life, practical 
Christianity, are inconceivable without Holy Communion. What 
can be done? 

I. Men who seldom or never go to hear a sermon, who content 
themselves with hearing a low Mass, do not give much opportunity 
to the priest to get at them. How can, nevertheless, influence be 
brought to bear upon these men? At meetings of a profane character 
the priest can hardly deliver a sermon ; nevertheless there is no end 
of opportunities, where in a few words, brief and to the point, atten- 
tion may be drawn to the necessity of practical Christianity, and 
some good will always be done by such words. 

A thoroughly Catholic surrounding at home will often be the only 
means of reaching this class of men. A few kind words from a 
pious mother, wife or sister, have frequently achieved great results. 

With men who attend sermons the task is an easier one. Above 
all things the priest should frequently throughout the year invite 
the men to the Holy Sacraments. The invitation must be cordial, 
kindly. A priest who summons the men of his parish to confession 

265 



266 THE CASUIST— VOL. 11 

in harsh and sarcastic terms will of course get not many to come. 
The feasts of Our Lord, of the Blessed Virgin and of St. Joseph 
offer good opportunities for such invitations. Many priests have 
found from experience that in cases of death the relatives, includ- 
ing the men, may be easily induced to receive the Sacraments. It 
will be wise to express publicly appreciation and pleasure when 
there has been a good attendance of men. 

2. A second means consists in pointing out that God has shown 
special predilection for men, confiding to them the most important 
positions in family, State and Church; the priesthood is only ac- 
cessible to men. 

3. Many sodalities and fraternities of men receive Communion in 
a body, which is a great inducement. A prudent priest will find 
many occasions, even in worldly societies of Catholics (veterans, 
firemen, policemen, etc.), of suggesting to the men to receive Com- 
munion, for instance at the burial of a member, on anniversary days, 
etc. Some members at least will take heed and that is a result not 
to be undervalued. 

4. The reception of the Holy Sacraments must be made for men 
as convenient as possible. Men should not be kept waiting very 
long ; they have not much patience. On special days for men's con- 
fessions appoint special hours, when they can conveniently come. 
Induce the women to come in the afternoon and to leave the evening 
to the men. 

It is incumbent upon confessors to address the men in polite and 
pleasant tone, to speak to them, as the difference in age may sug- 
gest in individual cases, as friend to friend, as father to son, disre- 
garding high or humble rank. We win them over in this way, and 
facilitate confession. By friendliness and kindness we show our 
good will toward them, we get them to return readily. If the con- 



FREQUENT COMMUNION 267 

fessor is obliged to demand from a man that he receive the Sacra- 
ments oftener, it is advisable to let the penitent himself determine 
when he can and would like to come to confession again. The con- 
fessor may express his reliance that the penitent will keep his word. 

The confession should not take much time, otherwise men be- 
come unwieldy. The priest should not ask too much. Conscientious 
observance of the divine commandments and of those of the Church, 
fulfilment of the duties of the state of life, courageous and loyal 
profession of the faith, these things should be briefly commended. 

5, The religious training of men must begin at school age. The 
priest should take pains to induce boys to receive Holy Communion 
monthly; the habit to receive frequently will often adhere to them 
in later years. 

A. Pachinger. 



LXIV. CELEBRATIO AND BINATIO, AFTER BREAKING 
THE FAST 

The villages M. and G. are about two miles apart. One Sunday 
morning, having said Mass, and breakfasted shortly afterward, I 
was called from M. by a messenger to the pastor of G., who had 
been suddenly taken ill and who wished me to officiate in his stead 
at High Mass, as otherwise his congregation would go without Mass. 
Even if they had betaken themselves to M., where there was another 
Mass, they could have reached the church only after the elevation, 
as the sermon (according to custom there) was preached after the 
Communion. "Idem casus," so writes Holzmann, "nuper contigit 
vel saltern contigere potuisset Riedae in mea patria, ubi D. Parochus 
die festo fiiii subito iniirmatus et impotens effectus ad illo die cele- 
brandum. Ablegebatur nuncius ad . . . monasterium Ursi- 
nense O. S. B. cum precibus, ut mitteretur sacerdos, qui loco Parochi 
Divina perageret. Scd quoniam nuncius primum circa aut post 
horam decimam advenerat, omnes sacerdotcs jam celebraverant, 
excepto solo Rmo. D. Praesule ac Abbate Bernardo; qui proinde 
illico se itineri accinxit et rheda Riedam delatus ibidem ad aram 
litavit cum maxima populi aedificatione et solatia." 

Abbot Bernard was of course in the fortunate position to render 
the asked assistance, not having broken the jejunium naturale; 1, 
however, had, as already mentioned, partaken of ablution and of 
food before becoming aware of the embarrassment of the pastor in 
G., and I therefore gave, regretfully, a declining answer. He, how- 
ever, considered my view a rigoristic one, and expressed his belief 
that in this case I might, even after breaking the fast, celebrate 
Mass, because if the Mass were omitted the people would be given 

26S 



CELEBRATIO AND BIN AT 10, AFTER BREAKING THE FAST 269 

scandal. That scandal would not be absent, he, as pastor, were better 
able to judge than I, a stranger, and for this reason he advised me 
to lay aside my opinion and be guided by his. The people not 
understanding that the prohibition to say Mass after breaking the 
fast, and concerning only the individual person of the priest, was 
more binding than the obligation of a whole parish to hear Mass. 
"But," I replied, "how can the people be scandalized, if it is made 
known to them that the pastor has been unexpectedly disabled, and 
that the summoned priest, not having foreseen the case, had broken 
the fast and therefore is prevented from celebrating a second Mass? 
In my opinion the people, if properly instructed, are more apprecia- 
tive than you assume. Besides, those well disposed and those less 
critical will not give much heed to the matter beyond some surprise, 
and in simple faith they will take for granted what is told them." 
This was the extent of my reply. My offer to hold a devotion instead 
of saying Mass was not accepted, and I was dismissed in disfavor. 
That same day I looked over Holzmann's Moral Theology, not from 
any uncertainty, but to reassure myself, and there I found, besides 
the above extract, also the following passage : "Quod si ergo in hoc 
casu etiam altcfatiis Rmiis ipse antea jam celehrasset, nullus alius 
sacerdos, qui loco Parochi sacriRcaret, mitti potuisset, quia ob suuip- 
tam in Missa jam Iccta ablutionem nullus amplius erat jejunus." 

Nevertheless, had the pastor been able to convince me, or could I 
have convinced myself, that without doubt, or even only probably, 
through the omission of the Mass scandal for the people would have 
ensued, that is to say, "gravis populi offensio, periculum gravis sus- 
picionis vel dicterii contra sdccrdotem, ant periculum, ne plures, 
quamquam possint ct deheant alio sc confcrrc ad audiendam Missam, 
ex inopinato illo casu ansam sumant cum peccato gravi Missam neg- 
ligendi" (Lehmkuhl, Theol. Moral, II, n. 162), then it would not 



2 70 THE CASUIST— VOL. II 

have been unlawful for me to say a second Mass, after breaking the 
fast, as, what is here presupposed as conditio sine qua non, my de- 
fectus jejunii was neither known, nor could have easily become 
known to the people. 

In confirmation of what has been said I add a few more lines from 
Holzmann : "Dices: si oriretur ex non-binatione scandalum in populo, 
licerct sacerdoti etiam non amplius jejuno celebrare; ergo etiam 
licehit in casu nostro. Respondetur concedendo in facta hypothesi 
antecedens et negando consequens. Disparitas est, quia in casu 
oriundi scandali liceret uti epikia, et mentem ecclesiae interpretari, 
quod sacerdoti^ etsi non amplius jejuno, nolit inter dictam esse itera- 
tam celehrationem; siquidem praeceptum de non praebendo scandalo, 
quum sit juris naturalis, praecepto ecclesiastico de Sacro celebrando 
a sacerdote jejuno praevalere debet et strictius observari. Secus in 
nostro casu, in quo nullum intervenit scandalum, quum populus non 
scandalisetur, si edoceatur, Parochum repente incidisse in iniirmi- 
tatem, alios vero sacerdotes casum Parochi non praevidentes jam 
celebrasse, adeoque ob defectum jejunii naturalis sumpta ablutione 
inductum secundo celebrare non posse, et parochianos ob impoten- 
tiam audiendi Missam excusari a peccato, tametsi eo festo Missam 
non audiant" (Theol. Moral, II, n. 379). 

All this fits my case. Similar cases occur not infrequently, and 
each individual case should be well weighed and considered. Ordi- 
narily there ensues from the omission of Holy Mass, and the 
solemnity joined to it, a regret only, but no scandal. Even if some 
ignorant people, or the roundtable at the tavern, may be given an 
opportunity to hold forth against the priest who inadvertently broke 
the jejunium, this would be by no means sufficient reason to ignore 
the ecclesiastical precept. But if one might have to fear what I am 
about to relate ? What in such case ? 



CELEBRATIO AND BINATIO, AFTER BREAKING THE FAST 271 

I once heard a malicious person say that a certain priest was not 
in the state of grace, and that he purposely partook of some food to 
have a pretext for not saying Mass, to escape in this way the mortal 
sin of celebrating sacrilegiously. Where such suspicions and 
calumny are to be feared (a case not likely to happen often) a 
priest, to prevent the same, may, if possible, keep his mishap secret, 
and in good conscience celebrate Holy Mass. 

It may happen, and this would be more likely, that some people 
in town or country, if Mass was not said in their own church, would 
not take the trouble to go to another church within their reach, 
and thus sin grievously. In this case, likewise, if no other priest 
were obtainable, a sacerdos non jejunus could say Mass. Provided 
of course the defectus jcjunii is neither known to the people, nor 
likely to become known. I have repeatedly noticed how priests, 
videnti populo, partook of the ablution, and later said another Mass. 
This was wrong, although the people believed this could be done 
in case of necessity (and in every one of these instances fortunately 
they so regarded the case). If at other times a priest in distraction 
should do something similar, it will not be easy for him to avoid 
talk, if he makes this (correctly) the ground for not saying Mass. 

Bernard Deppe. 



LXV. APPLICATION OF PROBABILISM 

Romualdus, a not very conscientious priest, yet inclined to scrupu- 
losity and suffering from it all the more as up to the present he has 
been unable to determine upon following one certain moral system, 
turns now to probabilism in order to rid himself of his scruples. He 
intends to carry it through in such way that he will invariably, in 
regard to himself and in the guidance of others, follow the less 
severe, if still probable, opinion. Especially does he believe: i. That 
whenever opinions differ whether an obligation is present or not, 
the opinion favoring freedom from obligation may be accepted; 
2. The lenient opinion is to be accepted if doubt prevails whether an 
obligation (sin) be grievous or slight; 3. If, finally, with regard to 
the necessary subjective conditions (appreciation and sufficient ac- 
tion of the will) for a grievous offense, there prevails an uncertainty 
in the penitent, according to the same principles of probabilism he 
may always decide on a merely slight offense. 

What is to be said, I. Of Romualdus' view in general ; II. Of his 
particular tenets? Of course it is presumed here that probabilism 
and its application is lawful. 

I. According to the lucid explanation of Lehmkuhl (I, n. 82 
sq.) probabilism applies only to the intrinsic lawfulness of an action, 
or its appropriateness for a (certain) end to be attained. In re- 
gard to the matter and form of the Sacraments, in so far as their 
validity is concerned, the system can not be applied. Eternal salva- 
tion is the goal of every man, the means necessary for the attainment 
of this goal must naturally also be available. No mere probability 
can be of assistance in this respect ; there must be, as is self-evident, 
as far as possible, a moral certainty attempted. Furthermore a great 

272 



APPLICATION OF PROBABILISM 273 

deal that is lawful in Itself, may, either in consequence of the gen- 
eral frailty of human nature, or in regard to special circumstances, 
conceal dangers and therefore be more or less unlawful ; lastly, man 
not only must avoid the evil, but also do the good, and, in propor- 
tion to his state and the graces granted him by God, he must strive 
after perfection; it is the confessor's duty not merely to prevent, as 
far as possible, a penitent from sinning, but also to lead him on to 
the path of virtue. Much as it is to be desired that the penitent 
should be enlightened to such extent that he would not sin as result of 
a false conscience, yet it would be wrong to advise, or even com- 
mand him, under all circumstances to choose the easier way. 

From the above it is obvious under what suppositions alone 
Romualdus' proceeding might be considered justified, and that for 
him, who on one hand inclines to scruples, and is not very con- 
scientious on the other hand, as is not infrequently a fact with scru- 
pulous people, there is the danger of entering upon a course which 
is opposed alike to the nature of probabilism and to the rules for its 
application. 

II. With respect to the particular tenets of Romualdus, the fol- 
lowing must be said : 

Ad. I. The tenets here presented — supposing of course the prem- 
ises suggested under I. prevail — lie in the nature of probabilism ; 
hence the adherer of this system may and will follow it. 

2. From the maxim : Lex dubia non obligat there appears at the 
first glance to follow not only : Non est imponenda obligatio, ubi de 
ea non certo constat; but also : Non est imponenda gravis obligatio 
ubi, etc. 

Upon this point also — again of course siippositis supponendis — 
we may agree with Romualdus. Upon closer observation, however, 
the matter would not seem quite so simple. Of the cases namely 



2 74 ^^^ CASUIST-VOL. II 

in which there is doubt between strict and lesser obligation (grievous 
and slight sin) two distinct kinds are distinguishable. Firstly, such 
doubt may arise from the uncertainty, whether in addition to a 
slight obligation there is not also, different from the first, another 
more serious obligation. Here, according to the principles of prob- 
abilism, one will as a matter of fact decide only on the absence of a 
serious obligation (in practise). Thus he who recites his breviary 
voluntarily without interior attention, certainly is at fault on account 
of lack of reverence toward God, although on this ground as a rule 
only at a slight fault ; whether he also offends on account of trans- 
gressing an ecclesiastical precept, that is, whether the latter pre- 
scribes the inner attention and this strictly, and stih poena niiUitatis 
recitaiioiiis, upon this point there prevail two contradictory probable 
opinions. Practically, an obligation on account of the ecclesiastical 
precept will therefore not be acknowledged. For another similar 
example see Lehmkuhl, I, n. 900. 

Secondly, there are cases, which do not deal with two obligations 
(sins) of which one — the greater — is questionable, in which there is 
doubt, rather, whether the one present obligation (transgression) is 
serious or slight. For instance there are various probable opinions 
as to whether a promise under oath to do something venially sinful 
is a slight or grave offense. Again, theologians are not unanimous 
as to what luaferia of a theft is to be considered gravis, so that also 
here there are several probable views. If we compare these two 
sorts of cases, we find without difficulty that they are not quite iden- 
tical, but a discussion of their difference may here be omitted as it 
will appear from the following argument. But how does there 
result from the theoretical probability of a milder opinion at once 
its practical certainty? 

Worthy of note, and an argument against an affirmative answer. 



APPLICATION OF PRO BAB I LI SM 275 

is the fact that even probabiHsts, Hke Ballerini and Lehmkuhl, 
of whom the former for the first time made a thorough application 
of probabihsm, and the latter, after a precise statement of the theo- 
retical aspect of the case, invariably draws practical conclusions 
according to the system which he represents, do not, for cases of 
the kind now contemplated, always advance as certain the practical 
conclusions (Compare Gury-Ballerini, I, n. 311; n. 313; II, nn. 
208 seqq. ; Lehmkuhl^ I, n. 413* ; II, nn. 232 seqq.). 

Furthermore, the principle upon which probabilism is based can 
hardly be here the furtherance of justice or fairness. For though 
it may be assumed that the lawgiver does not intend to bind by a 
precept the existence of which is doubtful, it is not so easy to prove 
that he must in every case specify the degree of obligation. Further- 
more, probabilism, like every other moral system, is only of value 
as a rule of conduct if brought to the consciousness of the mind ; the 
conscience, however, may be easily trained to distinguish, in the heat 
of struggle, distinctly enough between the lawful and the unlawful ; 
however, it is much more uncertain that in temptation the magnitude 
of an offense is judged, when the will has already decided for the 
evil. If, moreover, in a moral discussion the supernatural may be 
referred to, it must be remarked that in our cases grace also — 
already partly rejected — would hardly exert a specially effective 
force. Therefore the probability of the milder opinion, of which 
there is mention, will be frequently of no interest in practise, because 
consciousness of it did not prevail in the act, whence with some 
certainty a conclusion may be drawn as to whether from the theo- 
retical probability the practical certainty follows. Let me quote an 



* It is said there very significantly: "Maxime autem tunc id (peccatum 
leve esse) in praxi dici debet, si iurans ad actionis, quam promittit, pec 
caminositatem non attendit. . . ." 



276 THE CASUIST— VOL. II 

analogism. In order to incur a penalty imposed by a certain law it is 
usually necessary (at least in the case of ecclesiastical penalties) 
that the offender know something of the penal law, yet a precise 
knowledge of the nature and measure of the penalty is not in the 
least requisite. 

From all this follows, that, in this second class of cases, from the 
theoretical probability of the milder view can not always be con- 
cluded with certainty its validity in practise; Romualdus did not 
judge rightly, as the supposition of a merely slight obligation (sin) 
is not justified without special reason. 

The following may be adduced in elucidation and support: Sup- 
posing a grave obligation (offense) is not considered certain, then, 
I. The offense can not oblige to anything incurred by a positively 
grave fault, for example to the reception of the Sacrament of Pen- 
ance before Holy Communion. 2. There would, however, be the 
obligation of awakening perfect contrition before the reception of 
all Sacraments for which the state of grace is necessary, as here it is 
a question not of a positive precept, but of something in a certain 
respect required necessitate medii (above i). 3. The same may well 
be held in respect to the state of the soul required for the worthy 
administration of the Sacraments. 4. Whether this latter result fol- 
lows in every degree of (still actual) probability of the more severe 
view, we do not venture to decide for the present. Theoretically 
considered it appears really to be the case, as there where some- 
thing in the nature of a means must necessarily be present, any just 
doubt should be removed. In practise there would be frequent cause 
for an uneasy conscience, especially in the instance last mentioned. 

III. The question of the offense of a penitent with consideration of 
the perception and action of the will, is a pure question of fact, and 
must be decided according to fixed rules for ascertaining a fact, and 



APPLICATION OF PROBABILISM 



277 



for this reason has no direct connection with probabilism. But if 
after conscientious inquiry a doubt remained about the gravity of 
the offense then it would be a contradictio in terminis to decide 
merely for a slight sin. In regard to the practical consequences 
(compare Lehmkuhl^ I, n. 50) there would apply our remarks ad. 

n. (1-4). 

p. Ambrose Runggaldier, O.S.F. 



LXVI. DO CHRISTIANS BECOME MARTYRS BY DYING 
IN THE VOLUNTARY SERVICE OF PLAGUE- 
STRICKEN PATIENTS? 

This theological question occasionally gains new interest. St. 
Alphonsus gives the brief answer (I, VI, n. lOo) : "De illis, qui in 
ohsequio pestifererum ex charitate moriuntur, dicit Martyrologium 
Romanum 28 Fehr. 'Quos velut martyres religiosa fides venerari 
consuevit.' Et veros martyres esse, tentent 12 academiae, 13 cardi- 
nales et plus quam 3CX) auctores contra Hurtadum et alios." Thus 
St. Alphonsus. The learned P. Gobat, S.J., died 1679, speaks 
in his work on Moral Theology (Tom. i, Tract VI, Casus V) of the 
plague which in the year 161 1 fearfully devastated the city and 
environs of Constance, and of the zeal with which the Jesuits upon 
this occasion devoted their services to the plague-stricken. 

There he refers to a work, termed a "Golden Book," in which, as 
he sets forth, is proved on many authoritative and reasonable grounds 
that all victims of Christian charity, Victimae Charitiatis, as he calls 
them, who perish in the voluntary spiritual or corporal care of the 
plague stricken, are Christian martyrs, if not in the strictest, yet in 
the real and true sense of the word, "non quidem in rigidissimo, 
altamen in vero et propria sensu martyres." The Congregation of 
the Index had, so Gobat informs us, permitted the publication of 
this work with the qualification : dummodo adderetur, haec ab illo 
duntaxat, prohahiliter, disputata esse. In connection with this opin- 
ion Gobat then puts the question whether such martyrdom in the 
service of plague-stricken secures the privilege accorded to the 
bloody martyrdom according to a probable opinion — to which is op- 
posed one likewise probable, the privilege, that it, similar to the 

278 



DYING IN THE SERVICE OF THE PLAGUE-STRICKEN 279 

Baptism with water of adults, effects justification cum sola attritionc, 
without perfect contrition, "facere ex attrito contritum." 

After contemplating the question the author does not venture to 
answer it affirmatively. Practically this question is not of impor- 
tance, as such a sacrifice for charity's sake without an act of perfect 
contrition is hardly conceivable. 

Of more recent theologians Dr. Oswald, in his treatise upon Bap- 
tism, says : "The violent death suffered for Christ's sake, constitutes 
the idea of martyrdom ; for, whatever some theologians may observe 
to the contrary, the death of a priest incurred by spiritual care of 
plague-stricken suffices not for the glorious title of a Christian 
martyr." 

Very wisely St. Alphonsus prefaces his answer to our question 
with the velut martyres of the Roman Martyrology, in order 
to adjudge on the one hand a very special merit to the heroic 
sacrifice of life in works of charity to the plague-stricken, without 
on the other hand granting them the full title of martyrdom. In this 
sense our question has also been answered by St. Charles Bor- 
ROMEO, and his Christian contemporaries, during the plague then 
raging in Milan. J. P. Guissano, the saint's biographer, contem- 
porary, private secretary and faithful assistant, relates, in the fourth 
book of the saintly cardinal's life, of priests who at that time cared 
for the spiritual needs of the plague-stricken : "Many of these priests 
fell victims to the plague, in particular some Jesuits and Barnabites, 
and ten Capuchins, all of whom may be compared to those holy 
priests and deacons, who, in the reign of the Emperor \'^alerian, in 
Rome, met death in caring for the plague-stricken, and concerning 
whom the Roman Martyrology, under date of February 28, speaks 
as follows: 'Romae Commemoratio Sanctorum Presbyterorum, 
Diaconorum, et aliorum plurimorum, qui tempore Valeriani Impera- 



zSo THE CASUIST— VOL. II 

toris, cum pestis saevissima grassaretur, morho lahorantihus minis- 
trantes libentissime mortem oppetiere, quos velut martyres religiosa 
piorum fides venerari consuevit' " 

P. JOHANN SCHWIENBACHER, C.SS.R. 



LXVII. THE RECONCILIATIO ECCLESLffi SUBJEC- 
TIVELY PRESCRIBED, ALTHOUGH OBJEC- 
TIVELY NOT NECESSARY 

A priest, while celebrating Mass, is made the target for an as- 
sassin's bullet. The priest, although hit by the bullet, remains 
miraculously without injury beyond slight excoriation of the skin, 
while the assassin fires another bullet into his own brain and falls 
dead on the spot. The assassin and suicide was later identified and 
serious doubts were entertained as to his sanity. The question is, 
must the celebration of Holy Mass be suspended ? Is the Church to 
be considered profaned and in need of re-consecration? 

Of the various causes of a Pollutio ecclesiae we need only con- 
sider here, i. Sanguinis humani effusio, and 2. Homicidium. Marc 
(II, 1629) : Requiritur: copiosa effusio, non aliquarum giittarum, sed 
notabilis sanguinis, et sufficit vulneratio in ecclesia facta, etsi fortd 
sanguis extra ecclesiam effunditiir. As regards the priest, only his 
shirt and undershirt were stained with small blood spots, for this 
reason therefore no pollutio ecclesiae here took place. The ordi- 
narily inevitable effect of the bullet was averted in a wonderful 
manner. 2. In reference to the homicidium-suicidium debet actio 
esse letalis graviter pcccaminosa, et complementum suum habtiisse in 
Ecclesia (Lehmkuhl, II, No. 222). As madmen and lunatics are 
not allowed at liberty but are as a rule watched and confined, the 
perpetrator must be supposed of sound mind, and his deed as griev- 
ously sinful, till the contrary is proved. Therefere it is proper to 
suspend the Cclebratio Missarum, and to have the church recon- 
secrated, although, objectively considered, it would not have been 
necessary if the perpetrator's insanity had been established at the 

281 



282 THE CASUIST— VOL. II 

moment, instead of some time afterward. Under the circumstances 
it would have been unlawful to celebrate Mass without previous 
reconciliatio. 

P. Joseph M. Thuille, O.S.B. 



LXVm. CHILDREN'S CONFESSIONS 

If school children have been well prepared for their first con- 
fession by the catechist, and if a brief instruction preceding subse- 
quent confessions is not neglected, the tender conscientiousness pe- 
culiar to childish years grows and is strengthened, and the children, 
as a rule, will be anxious to realize all their sins and to confess them. 
It happens indeed that children, a few moments after having received 
absolution, or just before Holy Communion, if this takes place the 
day after, come to the confessional again, to mention some sin or 
other they had forgotten. 

Catechists sometimes try to come to the relief of a too great con- 
scientiousness or anxiety in children, by giving them a printed form 
of examination of conscience, and advising them to mark in this 
form the sins of which their conscience accuses them. Other cate- 
chists, at least during instructions for first confession, dictate to the 
children a schedule following the Ten Commandments, the capital 
sins, etc., bidding the children to make use of it in their examination 
of conscience. Other catechists again advise candidates for first con- 
fession to write their sins on a piece of paper and read them off in 
the confessional. It becomes frequently the practise of children 
to confess their sins from such written notes. There are then con- 
fessors who take away these notes and require the child to confess 
from memory, others again take the notes, read them through hur- 
riedly, put some questions and then proceed with exhortation and 
absolution. 

What is to be said of these practises? 

As regards printed examination of conscience, I must admit that 
their use by school children appears to me as not advisable. The 

283 



b84 the casuist— vol. II 

forms of examination of conscience, at least those with which I 
have become acquainted, are too detailed, entering into minute de- 
tails (in one such form for children I counted one hundred and 
fifty sins) and are thus calculated to burden the children's memory, 
and, as they do not always sufficiently understand the details, lead 
them to confess sins which they have not committed. These printed 
forms sometimes cause children, who are inclined either to fear or 
to indolence, to memorize all the sins there enumerated ; the former 
do it so as to be quite safe, the latter to save themselves the trouble 
of examining their conscience. A schedule for the examination of 
conscience should not be put in a prayerbook intended for the young, 
nor in a catechism ; for children will underscore with pencil certain 
sins and read them off in each confession. It certainly is a lesser 
evil if the child in the examination of conscience, which the catechist 
goes through with the whole class, does not realize some committed 
sin, than if he, following the printed form, would trouble himself 
with a long list of possible sins and either get an aversion to con- 
fession, or fall into one of the faults above mentioned. 

A printed examination of conscience leads some children to only 
mention in confession the sins found therein, and not others which 
they may really know to have committed, not making therefore a 
complete confession at all. 

Even with proper use of the printed form, the catechist worries 
himself and the children with the enumeration of all possible kinds 
of sins, the attention is anxiously directed toward every possible 
failing, and over the solicitude for the material completeness of the 
confession the most essential part, perfect contrition and earnest 
resolution of amendment, are either entirely neglected or not properly 
considered. 

Writing on a blackboard the chief classifications of sins is to be 



CHILDREN'S CONFESSIONS 285 

preferred to the use of printed examinations of conscience ; those pre- 
paring for first confession should be made to take down for them- 
selves these classifications, as a help in the examination of con- 
science to be made in private, and as an effectual incentive to 
methodical reflection. 

Under each classification the catechist will mention the different 
kinds of sins which fall under that head, and bid the children to 
reflect upon them now, and more so in their examination of con- 
science, and to commit to memory those transgressions of which they 
find themselves guilty. The treatment, in this manner, of the Second 
Commandment may here serve as an example : 

What is the Second Commandment? How is the name of God 
profaned? Use of the Holy Name irreverently, or in vain. Now 
reflect: Have I uttered the name of God irreverently? Have I 
cursed? How often? Have I taken God's name in vain? How is 
the name of God desecrated ? I will write down : Cursing, blasphem- 
ing. Reflect: Have I cursed? How often? Have I blasphemed 
against the good God? Have I spoken irreverently of God? Of 
the saints? In what further way is the name of God misused? I 
will write down : Swearing. Reflect : Have I taken an oath ? Have 
I called God to witness a lie? Would you mention in Confession 
all the sins I have mentioned? Which only? Who must mention 
them all ? 

If the children are aided in this manner to examine their con- 
sciences, they will be enabled to comprehend the scope of the in- 
dividual commandments, and accustom themselves to confess with- 
out notes. But even with an instruction of this kind, there will be 
many children who feel the need of writing down their sins, and of 
making their confession from written notes. What are we to think 



286 THE CASUIST-VOL. II 

of this manner of confessing sins? Is it to be rejected entirely, to 
be forbidden? 

This will hardly be maintained by any catechist or confessor. As 
regards those who make their first confession, nearly all catechists 
agree that they should not only be allowed to make notes, but should 
even be so advised. The children are thus impressed that the ex- 
amination of conscience, and the confession of all sins committed is 
of great importance when receiving the Sacrament of Penance, and 
that this part should for this reason be done with great care and 
diligence. 

The children will also be protected against anxiety, by the con- 
sciousness that they have told everything and not forgotten any- 
thing that appeared to them as necessary to be confessed. And this 
is not to be undervalued. Every catechist and confessor knows from 
experience that children can not well distinguish between forgetting 
and purposely concealing, and those who are disposed to be anxious, 
easily doubt the validity of their confession if they have forgotten 
to mention something which they had been prepared to tell. 

This erroneous perception may even lead to sacrilegious Com- 
munions e.v conscientiae erronea, if, namely, the child considers him- 
self bound to repeat the confession but does not do so from shame 
or fear, or for lack of opportunity. 

But even in subsequent confessions one should not forbid children 
to write their sins down and to confess them from notes. It may be 
true that such confession lessens the humiliation of the accusation; 
that it induces scruples ; that the reading interferes with contrition ; 
that the confession is deprived of that spontaneousness whereby it 
becomes a frank disclosure of the heart ; that it leaves the soul cold. 
But the experienced catechist and confessor will not consider these 
results as certain and general. On the contrary, the child confessing 



CHILDREN'S CONFESSIONS 2S7 

from notes is before and during confession more at ease, and can, 
with a good preparation by the catechist, direct his thoughts and 
feehngs more freely and intensely to contrition and resolution. When 
children leave school they desist of their own accord from writing 
down their sins. The prohibition to confess from written notes may 
lead not only to anxiety, and to sacrilegious Communions ex con- 
scientia erronea, but also to fickleness and frivolity at confession, for 
children may come to the conclusion that without notes it is not 
possible to make a thorough confession, and that for this reason it 
does not much matter whether they forget more or less sins. Chil- 
dren must be treated as children. Give the children encouragement, 
strive to inspire them with the confidence to confess either entirely 
without notes, or at most to make use only of general classifications ; 
but do not prohibit the writing down of sins and their reading off 
at confession. 

Many confessors are so opposed to children confessing from notes 
that they do not wait patiently till the child has read to the end. 
They either take the paper out of the child's hand and read it hur- 
riedly, or order the child to put the notes aside and confess from 
memory. Either of these ways shows want of patience ; yet, without 
patience, and a great deal of patience, one is not well equipped to 
hear children's confessions. Taking the notes from the child to 
read them over I can only approve in the case of the child speaking 
so low and indistinctly that he can not be understood. Taking away 
the notes and bidding the child to confess from memory is decidedly 
to be condemned, for it is equivalent to the command : Just mention 
whatever and how much you can remember ; it is immaterial whether 
you confess all your sins or only a few ! The child had relied 
on his notes, probably the fruit of great pains, he is deprived of this 
by his confessor who requires him to confess from memory. Con- 



288 THE CASUIST— VOL. II 

fused at this unexpected obstacle to his plans, he Is unable to confess 
fully from memory ; his confession will seem to him incomplete and 
invalid, and he will probably approach Holy Communion with a 
trembling heart, if, from fear, shame, or lack of opportunity, he can 
not go to confession again. And if not worried, because prevented 
from making a thorough confession, he will think the thoroughness 
of the confession is not so essential as he imagined, since the con- 
fessor himself attached so little importance to it. 

Experienced catechists and confessors hold therefore that be- 
ginners should be allowed to write their sins down, and should even 
be assisted in doing this ; the tender and sacred fear will not be 
destroyed thereby but rather nourished. Nor should older children 
be forbidden by the catechist to write their sins, even per extensum, 
and it should be considered a step toward confession from memory 
if they do not take complete notes with them into the confessional ; 
in time they will learn to confess without any notes at all. 

Encouraging children to confess without notes finds its proper 
place in school, not in the confessional ; there it is always ill advised 
and may either at the moment, or even for the future, result in evil 
consequences. Juventuti magna debetur reverentia (here considera- 
tion) QuiNTiLiAN very properly remarks, and these memorable 
words should not be lost sight of by confessors, in order that they 
may not render themselves culpable of the scandalum piisillorum. 
Children instructed by a worthy catechist have a sacred awe for the 
Sacraments of Penance and the Holy Eucharist; sad indeed it is 
if this precious treasure of the childish heart suffers by the applica- 
tion of a pet theory, or by lack of patience, on part of the confessor. 
The Holy Sacrament of Penance is so admirable a means of educa- 
tion that Protestant ministers have been known to deplore their 
lack of it. By frequent confession the child accustoms himself early 



CHILDREN'S CONFESSIONS 289 

to the proper conception of sin, guilt and atonement, which has so 
important an influence upon the moral life, and which the sensuality, 
vanity and frailty of the irreligious world would so gladly con- 
found. It is proper to child nature that the conscientiousness of 
guilt weighs upon its tender conscience, and that after a sincere con- 
fession the child feels greatly relieved. Hardly anyone else can 
make so profound and lasting an impression upon the heart of a 
child, as a prudent, kindly confessor in the confessional. If the 
Sacrament of Penance is to bear its proper fruit the confessor should 
not let anything interfere that might destroy or lessen in any way 
the reverence and sacred awe which the children have for it. This 
is true in regard to all the five things necessary for the worthy recep- 
tion of this Sacrament, but most particularly of the confession, be- 
cause the children consider this, as a rule, as a very important, if 
not the most important part of the Sacrament, and because it is just 
this that puts to test the patience, charity, conscientiousness, and 
prudence of the confessor. 

Canon Anthony Skocdopole, D.D. 



LXIX. IS IT PERMISSIBLE TO GRANT ABSOLUTION 
TO A DYING HERETIC? 

Januarius Bucceroni, SJ., Professor of Moral Theology at the 
Gregorian University in Rome, gives (in Analecta Eccl.) the solu- 
tion of the following case. A young German, Titius, Protestant, of 
such good moral conduct that he may be said to live in heresy with- 
out fault of his own, was taken seriously ill while staying with his 
mother in Rome. The German Catholic priest Cajus, befriended with 
Titius, at once went to visit Titius, solicitous for his eternal welfare. 
During their chat Titius declared himself a sinner, and begged the 
priest to pray that God might forgive him. The priest wished to 
avail himself of this good opportunity to lead Titius formally into 
the Catholic Church, and to baptize him. He disclosed his inten- 
tion first of all, privately, to the mother, who, however, opposed the 
idea very strongly, adding that no doubt could exist about the 
validity of the Baptism, and that she thereafter would allow the 
priest to speak to the sick man only about points of faith common 
to both religions ; as a consequence she did not leave the patient's 
side after that. As the patient's condition grew worse, the priest 
saw no other alternative and addressed the patient in the following 
manner : "Do you believe everything that God has revealed through 
Christ ? Do you sincerely repent of your sins ? Do you, before God 
and before me, confess yourself, as you have already done, to be a 
sinner ? Are you willing that, in so far as I can, I assist you to attain 
salvation?" The patient assenting to every question, Cajus directed 
him : "Put your trust in God ; He will forgive you your sins." There- 
upon he gave him, secretly, absolution sub conditione. Titius died 
shortly after and was buried according to the Protestant rite. 

290 



ABSOLUTION TO A DYING HERETIC 291 

The questions are : 

I. Whether a material heretic, who has the use of reason, and is 
in danger of death, can be vaHdly absolved without first having 
joined the Catholic Church ? 

II. Whether Cajus proceeded correctly? 

Resp. ad. I. It is true St. Alphonsus excludes dying heretics 
from absolution, when he says : "Haeretici enim, etiamsi in eo casu 
dent signa poenitentiae, non dehent ahsolvi, nisi expresse absolu- 
tionem pet ant, quia tales nunquam prudenter praesumi valent ea 
signa praehere in ordine ad confessionem, a qua siimmopere ab- 
horrent" (I. 6, n. 48). But this pracsumtio is a praesumtio generalis, 
which not only must yield to the truth, but to a contrary praesumtio 
in casu particulari. One is justified to presume the contrary in the 
case of a merely material heretic, who lives in good faith and is 
ready to do everything that God requires for attaining salvation. 

P. GuRY (Casus, Vol. II, n. 488) distinguishes, for this reason, 
between material and formal heretics, and holds that to a material 
heretic, unconscious and in danger of death, may be granted absolu- 
tion stih conditione. Gennari (Consultag., p. 255) extends this also 
to formal heretics. But if absolution, under such circumstances, 
can be given to an unconscious person, it can be given also to a 
heretic who is yet conscious. 

One can only be opposed to the granting of absolution in the 
belief that it would be invalid on account of the lack of the intcntio 
and the actus pocnitcntis. But is the necessary intention indeed lack- 
ing? If for Baptism the intentio implicita suffices, then the intentio 
implicita can suffice also for the Sacrament of Penance. This in- 
tentio implicita is included in the sincere will to do everything that 
God has ordained for attaining salvation. As regards the actus 
poenitentis, for the validity of the Sacrament is sufficient a confcssio 



292 THE CASUIST— VOL. II 

generica; it will not be difficult to induce a dying heretic to confess 
himself in general as sinner and to confidently ask God's forgive- 
ness, but if this is done, then we have the confessio and contritio, 
requisite for the validity of absolution. 

Nor does defechis iidei Catholicae offer a difficulty, for a haereti- 
cus materialis, one who is in good faith, may really be possessed of 
the Udes supernaturalis, the faith necessary for justification. Should 
some one object, further, that the ordinatio actuwn poenitentis is 
lacking, meaning the actus poenitentis (namely confessio, contritio) 
were not obtained in ordine ad accipiendam absolutionem, the reply 
is that an ordinatio implicita is present included in the will to do 
what God requires of us, and this ordinatio suffices. 

Moreover, theologians teach, almost universally, that absolution 
suh conditione may be given to a dying haereticus materialis, bereft 
of consciousness. But why may it be given to such a one ? Certainly 
not because it is presumed that God will instruct him by interior 
enlightenment of the necessity of the Sacrament of Penance, and 
that then this dying man, in ordine ad accipiendam absolutionem, 
will make the actus. Such supposition does not belong to the com- 
mon order of things, but to the province of miracles. We can 
not argue, therefore, on any such presumption. The reason can, 
therefore, only be because theologians believe that the actus poeni- 
tentis may be presumed in the manner mentioned, i. e., in ilia forma 
generica, quae absolute loquendo ad validitatum Sacramenti suffice. 
Resp. ad. II. That Cajus acted rightly follows from the above. 
But as he appeared to have doubt also about the validity of the 
Baptism, he should have administered Baptism privately sub con- 
ditione. For this purpose it would have sufficed, for instance, to 
wet the patient's forehead with a cloth and pronounce the forma. 
It was also quite correct for the priest to keep secret the granting 



ABSOLUTION TO A DYING HERETIC 293 

of absolution and to allow the Protestant form of burial ; he could 
not have prevented the latter. 

We would like to state some principles that will apply in practical 
procedure. 

1. In the case of a dying non-Catholic already unconscious, abso- 
lution may be given siih conditione. This will apply, at all events 
if the person is a haereticus materialis. But as it is impossible for us 
to say with certainty that a particular case is bona or mala fide, we 
may therefore give the ahsolutio conditionatim to all unconscious, 
dying heretics, excepting only those, de quorum indispositione con- 
stat. Theologically the granting of absolution is justified by the fact 
that one accepts the anxia respiratio, ictus oculorum ... as 
an outward sign of the inner disposition, and of the desiderium 
{impUcitum) accipiendi absolutionem, or that one concludes that 
through the bona Mes externe manifestata, there has shown itself 
outwardly the desiderium recipiendi necessaria sahitis media; this 
desiderium is synonymous with the desiderium impUcitum Sacra- 
menti. 

2. In the case of a dying non-Catholic, still conscious, if prudence 
forbids urging him to join the Church, we should above all incite 
in him acts of faith, hope and charity, and of perfect contrition ; we 
should induce him to declare himself a sinner before God, and to 
consent that the priest help him, as far as possible, to attain salva- 
tion. Then he may be given absolution sub conditione. 

Is there a doubt as to whether the sick man has been baptized 
validly, then, in every case, the absolutio conditionata must be pre- 
ceded by baptismus conditionatus as well. 

Ign. Rieder, D.D. 



LXX. ORDO SEPELIENDI PARVULOS— ADULTOS 

In a certain parish there died recently, of a contagious disease, 
two boys belonging to a prominent family, one in his fifth, the other 
in his ninth year. One funeral was held for both, sub uno according 
to the ordo sepeliendi parvidos, in white. Later a debate arose over 
this, as it was maintained that the younger of the boys should have 
been interred according to the ordo sepeliendi parvidos, but the 
other according to the ordo sep. adult os. On the other hand, the 
pastor's action was defended on the following special reasons : 

1. The older boy, though he attended school, had not yet re- 
ceived the Sacraments of Penance and Holy Eucharist. In that 
parish it was the universal custom to bury such children according 
to the ordo sep. parvulos. 

2. If the pastor had caused the bodies to be buried separately, 
and to be taken separately to the cemetery, he would have unneces- 
sarily increased the parents' grief. 

To elucidate this case we will put the following questions: 

1. When is, according to ecclesiastical precept, the ordo sep. 
parvidos to be applied, and when the ordo sep. adultos? 

2. Is the fact that the Sacraments of Penance and the Eucharist 
have not been received, a reason for deviating from this precept ? 

3. What should the pastor have properly done in this case? 

Ad. I. The ordo sep. parvulos is only applicable to baptized chil- 
dren who die before attaining the use of reason ; in the case of all 
others the ordo sep. adidtos is to be followed. This is evident from 
the Rit. Rom. and also from the wording of these two funeral rites. 

The Rit. Rom. explains in the Rubrics on the ordo sep. parvulos 
how the word parvuli is to be understood. Cum igitur infans vel 

294 



ORDO SEPELIENDI PARVU LOS— ADULT OS 295 

puer haptizatus dcfunctus fuerit ante iisum rationis, etc. Parvuli, 
therefore, are children who have not attained the use of reason, and 
adiilti those who have attained the use of reason, whether they are 
grown up or not. In this sense these terms also occur in other 
ecclesiastical regulations, as, for instance, in the ordo baptismi par- 
vulorum-adidtonim. The ordo sep. parvulos refers to all those 
dying before the years of discretion, the ordo sep. adultos to all 
those dying after attaining them. 

This is undoubtedly evident also from the character o^ the funeral 
rites. The ordo sep. parvulos is of a joyful character, as is manifest 
in the selection of the psalms (Laudafe pueri; Domini est terra; 
Laudate Dominum de coelis) ; the wording of the orations, which 
pray, not for the child, but for the survivors, that the latter may one 
day participate in the same happiness ; the white color : the color of 
rejoicing. This rite is evidently befitting only for those that have 
preserved the grace of Baptism pure and undefiled ; those that were 
incapable of the least actual sin, and who, therefore, were immedi- 
ately admitted to the vision of God. And that is positively the case 
only of those children who die before attaining the use of reason. 

The ordo sep. adultos, on the contrary, expresses sorrow at human 
sinfulness, fear of divine justice, and turns to God for mercy and 
grace to the departed. Hence the black garb, the Psalms Miserere, 
and De Profundis, and the corresponding sense of the orations. 
This funeral rite is, therefore, to be used not only for adults, but 
also for children who have reached the years of discretion, who, 
therefore, are capable of actual sin, and of whom one can not be 
quite certain that at their death they have nothing to atone for. 

Ex communiter contingentihus it is accepted that man at the com- 
pletion of his seventh year attains the use of reason. Hence it must 
be the general rule that all who have passed their seventh year must 



296 THE CASUIST— VOL. II 

be buried according to the or do sep. adult os. The custom of burying 
according to the ordo sep. parvulos children even after reaching the 
years of discretion, is in direct opposition to the ecclesiastical pre- 
cepts, and to the purport of the prayers, and it does a great injustice 
to the children concerned, as it deprives them of the intercession 
which perhaps they greatly need. This custom therefore is an im- 
proper custom, and is to be abolished. 

There must be no departure from this rule even if a child who has 
passed this age seems to have preserved his innocence ; outward ap- 
pearances are often deceiving, and the same argument might be 
urged for some grown persons (S. C. R., August 31, 1872). On the 
other hand there are younger children in whom wickedness exceeds ■ 
their years. Such cases, in regard to the rite to be followed, are 
only to be considered if notorious. Perpetuo amentes over seven 
years of age are interred like children under seven years of age (De 
Herdt, S. Lit. Praxis, I, III, n. 268). 

Ad. 2. The choice of the burial rite depends, therefore, in first 
place and chiefly, upon the attainment or non-attainment of the use 
of reason. As in our case the older boy had reached the years of 
discretion, he should by all means have been buried according to 
the Ordo sep. adultos. The circumstance that outside of Baptism 
he had not received any Sacraments, is no excuse for the pastor's 
procedure, but might imply an accusation against him, if, namely, 
his negligence was the cause of the boy dying without receiving the 
Sacraments. Every person able to distinguish between right and 
wrong, and therefore capable of committing sin, can and should, in 
danger of death, receive the last Sacraments, even if otherwise First 
Confession and Holy Communion are sometimes postponed until 
the ninth or tenth year. This is evident from divine and ecclesiasti- 
cal precepts concerning the reception of the Sacraments ; it would be 



ORDO SEPELIENDI PARVU LOS— ADULT OS 297 

superfluous to quote here authorities in this matter.* They all agree 
that a priest commits grievous sin if he does not administer the last 
Sacraments, in danger of death, to children, who have attained the 
use of reason, on the excuse that they had never previously received 
the Sacraments of Penance or of the Eucharist, or because they have 
not been fully instructed. 

Hence to say : He who has not received the Sacraments of Penance 
and of the Eucharist is to be buried according to the ordo sep. 
parviilos is not correct, but. He who is not capable of receiving the 
Sacraments. He who h capable of receiving the Sacraments must 
be interred according to the ordo sep. adultos. As this capability 
is contingent upon the use of reason we may amplify the rule given 
above and say : All those who have attained the use of reason, and 
have, or might have, received the last Sacraments, are to be buried 
according to the ordo sep. adultos. 

Ad. 3. (a) The pastor after proper preparation should have given 
the last Sacraments and general absolution to the older boy. A com- 
plete instruction for Confession and Communion is not necessary 
under the circumstances, only the knowledge of the truths which 
necessitate medii must be believed explicitly. Hereupon he should 
have helped the boy to examine his conscience, as far as possible, and 
should have been especially soHcitous for a good disposition by excit- 
ing acts of contrition, faith, hope and charity. This suffices for a 
valid and worthy reception of sacramental absolution and therefore 
for the reception of Extreme Unction. Whenever these two Sacra- 
ments are administered, general absolution should also be given. 
Furthermore if the child can distinguish the Holy Eucharist from 
ordinary material food, and there is no irreverence to be feared, he 
may also receive the Holy Viaticum. 

* Note, see p. 173. 



298 THE CASUIST— VOL. II 

(b) The older boy should have been buried according to the or do 
sep. adultos, the younger one according to the ordo sep. parvulos. 
Therefore the blessings at the house, in the church and at the ceme- 
tery should have taken place successively. No one could expect, 
however, that each body should be taken separately from the house 
to the church and thence to the cemetery, for that would have in- 
creased needlessly the parents' grief. A separate rite was therefore 
not possible in this particular part of the burial rite, it had to be per- 
formed according to one ritual and that should have been the ordo 
sep. adultos. This is the more important and necessary one, and it 
would have been more in accord with the sentiments of the parents 
and all those present. 

Lambert Studeny^ D.D. 



LXXI. TWO CASES OF RESTITUTION 

I. Cajus, a wealthy man, has three sons, one of whom, Titus, is 
leading- a dissolute Hfe, and has incurred debts to money lenders. 
Unable to pay them, he leaves the country. The creditors expect to 
be indemnified, upon the death of Cajus, from the share in the pa- 
ternal fortune which must fall to Titus. But Cajus is determined to 
prevent that any part of his property should fall into the hands of 
these money lenders, and sells his entire property to the two other 
sons. He sends Titus his legal share in cash, which the latter soon 
squanders, so that there now remains no prospect for the money 
lenders of ever getting their money, i. What obligations have Titus 
and Cajus? 2. Was Cajus right in acting thus, with the intention 
of doing the money lenders out of their due? 

Anszver. — i. Titus is evidently obliged to make restitution. He 
who incurs debts must pay them. There is only one chance of 
escape : if, namely, Titus is a minor, and if a positive law exists for 
the honum commune — as is contained, for instance, in the jus Ro- 
manian — which prohibits to claim from minors the payment of debts 
incurred in an extravagant manner. In such case Titus may refuse 
pa}TTient, if he has committed no fraud. But if such law does not 
exist, or if Titus is not a minor, there remains for him the obliga- 
tion to make restitution. Of course he who has nothing can not 
make restitution, and thus Titus would be released. Must the 
father in this matter assume responsibility for the son? In his 
capacity as father certainly not. Yet Cajus appears to be the cause 
for the loss to the money lenders, because in order that his property 
should not fall into their hands he sold it to his other sons. To this 
no objection can be made. This sale does not render it impossible 

299 



300 



THE CASUIST— VOL. II 



for Titus to pay his debts. On the contrary Titus now receives his 
lawful share and may pay if he so wishes. The father foresaw of 
course that Titus would not pay, and he suffered the loss to fall 
upon the money lenders. In this way one may, under certain cir- 
cumstances, sin against charity, but against justice only if he is 
vi muneris to prevent damage to a third party. Who, however, 
can assert that Cajus was bound vi muneris to prevent a loss to the 
money lenders? Cajus has, therefore, committed no wrong toward 
the money lenders and need not make restitution. 

Anszver. — 2. This question demands a new presumption. Cajus 
intended not only to save his property but to do the money lenders 
out of their due. He sells his property therefore to his two sons, 
and pays Titus his share out of the price received. The latter, of 
course, squanders this money. The father calculated correctly and 
the lenders lose their money. Did the father thus wrong these 
people? At first glance the answer seems to depend upon whether 
an intention can make unjust an act of itself just, and whether there 
is incurred responsibility for the consequences. Yet this is only so 
apparently. For the question about the influence of the intention 
upon a just act presupposes, and must presuppose, that this act is 
causa damni; it must be ascertained whether through the intention 
the causa iusta became a causa iniusta. This necessary presumption 
is lacking in our case ; for Cajus through paying Titus his share, 
even with the purpose of doing the money lenders out of their due, is 
not the causa, but only the occasio damni, consequently free from the 
duty of restitution. Thus the theory ; but in actual life the circum- 
stances are often deciding. It is hardly conceivable that Cajus, de- 
termined to outwit the money lenders, did not also in one or another 
way, through his counsel, influence his son's unjust conduct. If this 
is the case — from the statement of the casus this is not evident — 



TWO CASES OF RESTITUTION 301 

then Cajus must assume the consequences of his consilium iniustum, 
and make restitution ; of course only in second place. 

11, Frank lends to Anthony, who is financially embarrassed, the 
sum of one thousand dollars without note of hand or security. Sub- 
sequently Anthony gives his daughter in marriage to Caius, making 
over to him in the marriage contract everything he possesses, and 
saying nothing of the one thousand dollars which he owes to Frank. 
After the death of Frank his heirs demand of Caius, who is in good 
circumstances, the payment of the thousand dollars, because Anthony 
had transferred his entire property to him. Caius, however, know- 
ing nothing of this debt, affirms in court, upon oath, that he did not 
make this loan, whereupon the court decides against the heirs of 
Frank, i. Must Caius make restitution for the debt? 2. Must 
Caius pay the costs of the suit? 

Answer. — i. We presume that Anthony at the time he made the 
settlement possessed nothing outside of his real estate ; we suppose 
further that he not now possesses anything, that he is not even in 
a position to earn anything and thus pay the debt. 

Under these suppositions we say : Caius must give up the thousand 
dollars. But why? To establish this obligation there are several 
ways of arguing ; we prefer the following : Anthony borrowed money 
of Frank. A debtor does wrong if he does not pay his debts, and 
also if he voluntarily places himself in a position that makes it im- 
possible for him to pay the debt. Anthony did the latter by trans- 
ferring to his son-in-law everything that he possessed. Hence An- 
thony must make good this wrong, as far as possible. There re- 
mains nothing for him to do but to reclaim from Caius that portion 
of his property needed to cover his liability, presuming that he can 
reclaim it. This he has the right to do, for the donation was in that 
part unlawful. The part, namely, which Anthony needs to pay his 



302 THE CASUIST— VOL. II 

debts, he could not lawfully give away, particularly not if he wished 
in this way to defraud Frank, or his heirs, of their due. So are 
unlawful, according to all moralists, donations made by a merchant 
after declaring bankruptcy. The profane law expresses itself in the 
same sense, and tolerates no donation where the money is needed to 
pay debts. The donation therefore in that part was invalid, conse- 
quently Anthony is obliged to lay the matter before his son-in-law, 
and demand the return of the one thousand dollars. In regard to this 
obligation of Anthony, it is Caius' duty that he believe his father- 
in-law, for he has no reason to doubt; and furthermore that he 
pay over the demanded amount, for that which Anthony could not 
lawfully give, Caius can not lawfully retain. 

If it be too difficult for Caius to pay the sum all at once, he is to 
be allowed to pay the debt in partial payments. We must concede, 
even, that if Caius or rather his wife, for the time required by law, 
should have regarded the entire donation bo7ia Me as her property, 
nothing seems to stand in the way of declaring lawfully that the 
claim is outlawed and that Caius may retain the one thousand 
dollars. 

Answer. — 2. Caius has never heard from a credible source, i. e., 
from his father-in-law, anything concerning the entire affair. He 
was not bound to credit the statement of the heirs and could rightly 
let suit be brought. Caius in conscience is therefore not answerable 
for the costs of the legal proceedings. Let us, however, suppose 
that Caius in the course of the suit, before taking oath, had been 
positively enlightened concerning the point at issue. He could then 
not have taken the oath, and was bound to pay over the one thousand 
dollars. If he did not do this, then he would also have to pay the 
costs for the continuation of the suit. 

Franz Hilgers. 



LXXII. MEMBERS OF RELIGIOUS ORDERS AND 
PERSONAL PROPERTY 

The following case is presented for solution: Cornelius, now a 
secular priest, but formerly belonging to an order, sic confitetur: 
While still in the order I was called one day to the deathbed of a 
woman whose regular confessor I had been. Upon having con- 
fessed she presented to me, as a token of gratitude for my long years 
of endeavor with her, a bank book for six thousand dollars. Even 
then I had the intention of leaving eventually the order and so I 
asked her whether I might keep the money for my own use for 
the event of my leaving the order. She answered : I do not give this 
money to the order, but to you personally; do with it as you will, 
keep it for the time when you will have left the order. Accordingly I 
kept the bank book, without the knowledge of my superiors. Three 
years after that I left the order, and drew the six thousand dollars, 
together with interest. Since, however, I belonged to a rigid order 
with solemn profession, and had taken the vow of poverty, I feel 
worried and beg you, as my confessor, to advise me whether I may 
keep the money. To decide this case we must answer the following 
questions : 

1. May a religious, in anticipation of the fact that he will posi- 
tively obtain permission to leave the order, put away some means 
(as in our case) for his future use? 

2. If this were not lawful in general, would our case perhaps form 
an exception, the benefactress having expressly declared that she 
presented the bank book to Cornelius, and not to the order? 

3. If his (Cornelius') action was sinful, was it an offense against 
poverty, or also against justice? 

4. Has the sin against justice ceased through the dispensation 

303 



304 



THE CASUIST— VOL. II 



from the vows, and may Cornelius now keep the money in good 
conscience ? 

5. What is to be done in case of death of this ex-religious? Must 
the money revert to the relatives, or heirs, of the benefactress, or 
to the order, or may CorneHus dispose of it as he pleases ? 

I reply to the questions as follows : 

Ad. I. No; a religious, before his dismissal, must certainly not 
possess himself of anything to make use of it after his dismissal; 
for he is hie et nunc still fully bound by the vows of holy poverty. 

Ad. 2. As the benefactress expressly agreed that the presentation 
take place only pro tunc, not at once, it appears to me that the re- 
ligious may have meanwhile considered himself as depositarius; this 
of itself Is not against poverty, but may certainly be against the rules 
of the order ; whether venialiter or graviter, depends upon rules and 
, circumstances. 

Ad. 3. As the order had obtained no right to the amount, and the 
benefactress having renounced her title to it, Cornelius does not 
violate justice, nor poverty per se (except perhaps secundum de- 
siderium et actum internum, if he per fas et nefas, without a reason 
valid before God, seeks release from his vows) ; he may have vio- 
lated the rules of the order, or also the obedience, perhaps grievously. 
In this answer, denying the violation of poverty, I am presuming 
that Cornelius really had reason and prospect to be released from the 
vow of poverty. Compare, however, my answer Ad. 5. 

Ad. 4. This answer is given in the preceding argument. 

Ad. 5. The money is not to be given to the heirs of the benefac- 
tress, as she has invalidated her and their right to it by voluntary 
cession. Nor is it to be given to the order, as, according to the will 
of the benefactress, it has no claim to it. Still it does not follow 
that Cornelius can freely dispose of it. In secularizing a professed 



MEMBERS OF RELIGIOUS ORDERS AND PROPERTY 



30s 



of solemn vows there remains generally intact the substance of the 
vows; the secularized is and remains disqualified from possessing 
property, he may have, and acquire, property ad usum suum, quan- 
tum eis ad sustentationem indiget; whatever is over and above that 
he must in his lifetime, or mortis causa, give up to the purposes men- 
tioned in the Indult of Secularization. If a certain work is men- 
tioned to which the legacy of the secularized religious should revert, 
then all his property must be so disposed of ; if, however, the Indult 
of Secularization gives the right of free disposal, ad pias causas, 
then the secularized religious in regard to this money may freely 
choose among the piae causae. 

Aug. Lehmkuhl, S.J. 



LXXIII. REPETITION OF EXTREME UNCTION 
DURING THE SAME ILLNESS 

A Catholic, for a long time estranged from his religion, who has 
hated the priests and used blasphemous language, suffered a stroke 
of apoplexy. He remained unconscious for an entire day. In this 
extremity it was thought best to give him absolution and Extreme 
Unction. Later the patient returned to consciousness, without being 
able to speak. He violently protested against the exhortations of 
the priest and of the good sister in attendance, once or twice he 
even attempted to spit upon the crucifix held before him. Mean- 
time many prayers were being offered for him in the hospital where 
he had been taken. Suddenly he gave unmistakable signs of con- 
version ; he kissed the crucifix with devotion, and listened willingly 
to the priest's words ; he repeatedly tried to make the sign of the 
Cross, and endeavored to utter the Holy Name, as well as other 
invocations. The chaplain rejoiced at this sudden change of mind 
and administered Extreme Unction once more. For this, however, 
he was later severely censured by a confrater, who pointed out that 
Extreme Unction must not be repeated in the same illness. Who 
was right? 

The chaplain referred, in proof of his correctness, to the lack, on 
the part of the recipient, of the intention requisite for the validity 
of a Sacrament. As this intention on part of the subject was, in 
fact, not present at the first administration, the repetition of Extreme 
Unction after the patient's conversion was perfectly justified. The 
action of this unfortunate man before his conversion proved his 
aversion for any religious act, and consequently the absence of the 
intention requisite for the validity of the Sacrament. 

306 



REPETITION OF EXTREME UNCTION 307 

The reasons which the confrater cited against this view are not 
valid, as their closer examination will show. 

1. Extreme Unction may only be administered once in the same 
illness. In this connection it may be said that in our case it was 
really only given once, as the first administration proved to be 
invalid. 

2. But this unfortunate patient was already sacro oleo unctus, and 
all prayers prescribed by the Church had been said over him. The 
invalidity of this objection is obvious. Some one may be aqua 
ahlutus, or chrismate unctus, and yet the particular Baptism, or 
Confirmation, may be invalid, and he is neither baptized nor con- 
firmed, if in administering the Sacrament an essential defect oc- 
curred. Lack of intention, on part of the administrator or recipient, 
is such a defect in the essence of the Sacrament. 

3. But Extreme Unction is often administered to an unconscious 
person who has led an unchristian life, has not received the Sacra- 
ments for a long time, nor manifested a desire now, and yet no 
solicitude is had for the validity of the Sacrament in such cases. 
From this it may be inferred only that in many cases the adminis- 
tration of this Sacrament is invalid. Following the principle in 
extremis extrema sunt tentanda the Church goes as far as possible 
in granting Extreme Unction, which for so many poor souls may be 
their only salvation. For the recipient of the Sacrament the in- 
tentio hahituaUs is requisite, in the case of unconscious persons 
the Church contents herself with the intentio intcrpretativa; i. e., the 
Church explains : if this patient hie et nunc could express his in- 
tention, he would desire the Sacrament, or : if he were conscious he 
would request Extreme Unction. If it is proved that this pre- 
sumption was an erroneous one, the administration must be regarded 



3o8 THE CASUIST— VOL. II 

as invalid. In our case we have in the patient's behavior sufficient 
proof that the presumption this unconscious patient would, if in 
his senses, wish to receive the Sacraments, was erroneous. His 
demeanor denoted sufficiently that he was averse to receiving the 
Sacraments. On the part of this subject, therefore, all intention 
was lacking ; it was administered to him against his will, against his 
intention. 

4. But let us suppose the case — which often enough happens in 
deathbed conversions — that a person estranged from religion has 
received Extreme Unction in the state of unconsciousness ; subse- 
quently he comes to and gives evidence of a religious disposition, 
then in continued danger of death Extreme Unction is not again 
administered; and why not? Because in such a case the intcntio 
intcrpretativa, upon the presumption of which the Sacrament was 
given him, was lawful and the contrary not in evidence. If, how- 
ever, the contrary is proved, as in our case, if it is ascertained that 
the good will presumed and the intentio interpretativa was not pres- 
ent, then the matter is quite different, and another administration of 
Extreme Unction, even in the same illness, is certainly in order if 
the refractory patient afterward shows his willingness, 

5. But does not theology teach of a sacramentum informe, that 
it may become sacramentum formatiim and that the sacramental 
grace may be imparted later to a hie et nunc ill-disposed recipient, 
as soon as the indispositio is lifted and the obex gratiae removed? A 
sacramentum informe can, it is true, become in such manner a saera- 
mentnm formatmn, the validity of the same supposed. Sacraments 
invalidly administered can not be made valid. To administer a 
Sacrament to a subject who has no intention, does not mean merely 
to give it to an unworthy person, but it is giving it to a person 
incapable of receiving it. 



REPETITION OF EXTREME UNCTION 309 

As the case stands we can not perceive how the chaplain was liable 
to censure; the reasons advanced by his confrater against the sec- 
ond administration of Extreme Unction are not valid. 

John Ackerl, D.D. 



LXXIV. THE IMPEDIMENT OF CLANDESTINITY 

The following somewhat complicated marriage case was laid by 
an episcopal curia before the Sacred OfUcium for decision. 

The answer given by the Congregatio S. Officii, Seu Inqiiisitionis, 
differs somewhat from the opinions of the consulted theologians, 
and is, one might say, astonishingly simple. We give the case ac- 
cording to the Analecta ecclesiastica. 

Caius, a Catholic of the diocese of N., contracted, thirteen years 
ago and in the town of A., where the Tridentinum has been pro- 
mulgated, a marriage with Titia before a non-Catholic minister, and 
had with her several children. Tortured by remorse, he wished to 
re-validate this marriage, but a great obstacle stands in the way. 
Titia had, twenty-five years ago, been married to a Lutheran, 
Sempronius, which marriage, however, had been dissolved in court 
fourteen years ago. Titia and Sempronius, both non-Catholics, 
lived at that time in the town B., where the Concilium Tridentinum 
had been published at a time when a separate Protestant community 
already existed, and they arranged in this town everything necessary 
for marriage; the ceremony, however, did not take place in B., but 
in the town of C, before the, for this act, delegated non-Catholic 
minister; immediately after the wedding they returned to B. and 
there lived peacefully, becoming the parents of two children. Their 
happiness was destroyed by the husband's faithlessness, and the 
court granted divorce on this ground. It is to be noted that in the 
town B., where the consensus was given, the Tridentinum had been 
published at a time when no Protestant community existed there. 
Caius now asks that the marriage between Titia and Sempronius be 

310 



THE IMPEDIMENT OF CLANDESTINITY 311 

declared invalid on the impediment of clandestinity, thus making it 
possible for him to contract marriage with Titia. 

As we see it is a matter here of two marriages. The marriage 
between Caius and Titia is without doubt invalid, because of clan- 
destinity, and for this reason Caius wishes re-validation. To this 
re-validation is opposed the first marriage between Titia and Sem- 
pronius, which, presuming that it was valid, could not be dissolved 
by the court. The question, therefore, is : Was the marriage between 
Titia and Sempronius valid or not? 

In the episcopal curia opinions were divided. The majority of 
counselors held the marriage to be invalid on account of the ob- 
stacle of clandestinity; it had been contracted in a place where the 
Decretum Tatnetsi was in force, but before a non-Catholic minister. 
Furthermore, they claimed that: in this case the decree of the 
Sacred OfUcium, of June 5, 1889, finds application, according to 
which a marriage contracted clandestinely in a locality where the 
Tridentinum exists in force, can, setting aside other prescribed 
formalities, be pronounced invalid by the ordinary, without a second 
decision being necessary. 

Other diocesan counselors held for various reasons that the mar- 
riage in question was valid. 

The Theologus capitularis gave his votiim as follows: i. The first 
question is, was the marriage between Sempronius and Titia valid, 
or not? 2. If undoubtedly invalid, then of course the decretum S. 
Officii, of June 5, 1889, finds application and episcopal curia can 
definitely pronounce the invalidity. 3. I hold, in opposition to 
others, that for a certainty the marriage in the town C. was con- 
tracted invalidly, because in that place the Decretum Tamctsi was 
published, and one must maintain the principle: Locus regit actum. 
4. Because, however, uon scnvta forma Tridentina they could in 



312 THE CASUIST— VOL. II 

B. have contracted the marriage validly, the question is whether 
they have not really contracted the marriage upon their return there 
according to the law : consensum maritalem mutuum de praesenti 
manifestatum matrimonium facere. The Jus Decretalium, which is 
based upon the natural law, still exists in force in all places where 
the Tridentinum has not been published. This consensus is not de- 
pendent upon a verbal declaration, and Gasparri therefore writes: 
"Quaenam signa aut facta consensum satis exprimant, non potest 
regula generali indicari. Copulam carnalem, in nonnullis circum- 
stantiis habitant, satis exprimere maritalem consensum^ alias de- 
claravimus" (Tract. Can. de Matr., n. 831). 

From undoubted facts the marriage between Sempronius and 
Titia appears valid. We reason thus : the two gave their consent 
before the non-Catholic minister in the town C, where the Tri- 
dentinum existed. This consent was of course invalid, and for this 
reason the marriage contracted in that place was likewise invalid, 
but solely on account of clandestinity, not on account of lack of 
consensus. Then they returned to their home in the town B., where 
they were free from the Tridentine law. The consensus still con- 
tinued, because on their return they considered themselves married, 
lived a long time in peace and reared children, certainly not aifectu 
fornicario, which would have to be proved, but animo maritali. Of 
course non concuhitus sed consensus facit nuptias. It is probable 
that they gave this consent, by word or sign, upon their return, but 
it is certain that this consent found sufficient expression eo momenta, 
quo animo maritali in urbe B. prima vice copulam carnalem 
habuerunt. The interior marriage consent was present, because they 
believed themselves wedded, the exterior sign of the consensus was 
added through the copula; therefore a valid clandestine marriage 



THE IMPEDIMENT OF CLANDESTINITY 313 

was contracted. To this argument can not be opposed the decree 
Consensus mutuus of Leo XIII, February 15, 1892. Through this 
decree only the previously existing praesumptio iuris et de iure is 
removed, namely, the praesumptio: valida sponsalia per copulam 
carnalem suhsecutami, aifectu maritali habitant, in matrimonium 
validum transire. 

The Pope by this decree did not in the least wish to abolish clan- 
destine marriages in territories where the Tridentinum does not 
exist; nor did he desire to deprive in these territories couples of 
the possibility animo maritali copulam habendi et matrimonium 
contrahendi. In individual cases, therefore, it is to be ascertained 
whether the betrothed consensu maritali copulam habuerint necne. 
In our case a moral certainty is present that Sempronius and Titia 
upon returning to B. aifectu maritali copulam habuerint. Hence all 
conditions are present for a valid marriage ; the intrinsic consensus, 
which certainly continued, expressed exteriorly by the coptda; like- 
wise the lack of any obstacle. Therefore they contracted a valid 
marriage ; at the very least it is not evident that the marriage was 
an invalid one. 

The Defensor Matrimonii held as follows : Sempronius and Titia 
had their domicile at B., where the Cone. Tridentinum was pro- 
mulgated, but at a time when at that place there was a separate 
Protestant community. Although Reiffenstuel is of the opinion 
that in such localities the Tridentine law binds Protestants, this 
opinion is now abandoned, and the Congregation of the Council has 
repeatedly recognized such marriages as valid. Sempronius and 
Titia, therefore, might have contracted the marriage in B. non 
servata forma Tridentina. As a matter of fact the wedding took 
place at C, where a Protestant community had existed for only about 
sixty years; they returned to B. and lived peacefully for several 



314 THE CASUIST— VOL. II 

years. For validity, as also for invalidity, there seem to be weighty 
grounds. 

A. Reasons for the validity: 

1. Many authors have regarded all Protestant marriages as 
valid, even though the Tridentine form has not been observed (Com- 
pare AiCHNER, J. Eccl. (edit. 7), p. 664; and Benedict XIV, de 
Synodo dioec, I, VI, c. 6, n. 4). 

2. At any rate Sempronius and Titia could in B. non servata 
forma Tridentina validly contract the marriage solo consensu mari- 
tali mutuo expresso; this could take place also per copulam maritali 
affectu habitam. The Defensor Matrimonii alludes here to the argu- 
ment which the Theologus capitularis emphasizes. 

3. Lex Tridentina est personalis ct localis; quatenus est personalis 
Sempronius and Titia were unhampered! inasmuch as it is localis, 
there occur exceptions, as a pastor may marry his parishioners in a 
locality where they have not their domicile. It appears then that 
Sempronius and Titia could contract their marriage in C. 

4. There is the principle : No one can be obliged to the impossible. 
It was impossible for both to go to a Catholic priest. Of course this 
impossibilitas must exist for the community, not merely for the 
individual. For it is a matter of a lex irritans, which considers the 
incommodum communitatis, non autem personae. 

B. Reasons for the invalidity : 

1. The marriage in C. was evidently invalid, because the Tri- 
dentinum existed there as a law, binding also for Protestants. The 
lex tridentina est localis et personalis; now if Sempronius and Titia 
could contract the marriage in B. non servata forma Tridentina, 
they could not do so in C. quia locus regit actum. This law admits 
of no exception because it is a lex irritans. 

2. It can not be urged that the marriage was valid because con- 



THE IMPEDIMENT OF CLANDESTINITV 315 

summated in B. The consent from the very beginning was invalid 
and would not become vaHd mcra copula carnali. Both believed 
they had been married, and in B. did not renew the consent, neither 
expressly nor through the consummation of their marriage. At any 
rate, the Defensor concludes, the solution is not evident, and hence 
the case should be laid before the Apostolic See. 

The answer of the Congregatio S. Officii, Sen Inqiiisitionis, was 
as follows: 

lUustrissime et Reverendissime D amine ! 

Litteris datis die 2^ Aprilis h. a. Amplitudo Tua sequeritia dubia 
proponebat: 

1. Utrum matrimonium Titia cum Scmpronio coram ministro 
acatholico in urbe C. inittim, in urbe B. praeparatum et continuatum, 
constet ftrmiim, an possit ex capite eland cstinitatis irritum declarari 
a iudice ecclesiastico? 

2. An possit Cains catholicus, facta prius tali dcclarationc, cum 
eadem Titia acatholica, ex qua iam duos geniiit libcros, matrimonium 
legitimum, servatis servandis, in facie Ecclesiae contraheref 

Res delata est ad Emmos. D.D., Cardinalcs una mecnm Inqnisi- 
tores gcneralcs, qui in Congregatione generali habita in fer. IV die 
29 Julii respondendum decreverunt : 

Ad. I. Matrimonium in casu, omnibus consideratis, esse nullum; 
modo constet per iuramentum a muliere praestandum, consensum 
{scientibus sponsis nullitatem prioris consensus) non fuisse reno- 
vatum in loco, ubi Tridentinum non viget. 

Ad. 2. Constito, uti supra, de libertate mulicris quoad cius matri- 
monium cum Caio catholico, ciiret prius R. P. D. Episcopus, ut ipsa 
mulier convertatur; sin minus, suppl. Sanctissimo pro dispcnsatione 
super impedimento mixtae rcligionis, pracviis in Curia cautionibus 



3i6 THE CASUIST— VOL. II 

et praevia quoad virum cathoUcum absolutione a censuris propter 
attentatum coram ministro haeretico matrimonium. 

Adprobata a Sanctissimo D. N. hac Emorum Patrum resolutione 
sequenti feria VI. die 31 dicti, transmitto ad Ampl. Tuam heic 
inchisum relativum rescriptum atque interim omnia fausta Tibi a 
Domino adprecor. 

Amplitudinis Tuae 

uti frater 

Romae, 16 Augusti, i8p6. L. M. Card. Parocchi. 

In the letter referred to was contained the faculty dispensandi 
super impedimentum mixtae religionis et absolvendi Caium a cen- 
suris. 

We would add the following remarks: 

I. As is clear from the decision, the Congregatio S. Off. regarded 
the marriage contracted in C. as invalid. A new proof that in locali- 
ties where the Tridentinum was proclaimed at a time when no 
Protestant community there existed, the Protestants were bound by 
the lex Tridentina. Even the objection that Sempronius and Titia 
could not possibly go to a Catholic priest is not taken into considera- 
tion, because it is a question of lex irritans, which admits of no 
exception per epikiam. Note also: the marriage in C. was invalid 
although the couple came from B., where the Tridentinum did not 
exist for them. Therefore Lehmkuhl (Theol. Moral, II, n. 780 
nota) is quite correct when he objects to Carriere's opinion, who 
maintains : "probabilius valere matrimonium eorum, qui in loco, i 'n 
lex Trid. non vigeat, habitantes, sed peregre existentes in loco, ubi 
vigeat, contrahant." 

. 2. Not even by the consummation of the marriage in B. per copu- 
lam was the same rendered valid "Consensus enim facit matrimonium 



THE IMPEDIMENT OF CLANDESTINITY 317 

non copula." This consensus was from the very beginning invalid 
et non Urmatur tractu temporis, quod de iuri non subsistit. They 
consummated the marriage in the false presumption that they had 
been married, not to contract the marriage. This defeats the clever 
interpretation of the Theologus capitularis. 

3. The two might have contracted a clandestine marriage in the 
town B. ; for the Theologus capitularis was correct in maintaining 
that through the decree Consensus mufuus only the matrimonium 
praesumtum is abrogated, but not the matrimonium clandestinum, 
for localities where the Tridentinum does not exist. For this rea- 
son the Congregatio requires from Titia the oath that she never ex- 
pressly renewed the consent in B., knowing that the consent given 
in C. had been invalid. 

The decision of the S. Congregatio elucidates various mooted 
points and is a guide for the decision of similar cases. 

Ign. Rieder, D.D. 



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